Capital Punishment and the Demands of Human Dignity: Recovering the Doctrines of the Imago Dei and the Two Cities

Submitted by: Anne Breiling

A Thesis Presented in Partial Fulfillment of the Requirements for the Degree Master of Arts in Theology

Director: Dr. Marc Guerra Second Reader: Dr. Steven Long

Ave Maria University May 2008

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The age of making distinctions is past, it has been vanquished by the system. In our day, whoever loves to make distinctions is considered an eccentric whose soul clings to something that has long ago since vanished.

-Søren Kierkegaard

Any consideration of the death penalty that collapses the distinctions between guilt and innocence, between execution and murder, between an allowance and a duty,

between retribution and revenge, is wrong. Catholic thought is known for its richness, clarity and logic, and most of all for its realism. We must reclaim that

richness of thought in the context of discussion about this subject. - Mary Kochan

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CONTENTS

Part I : Or ienting the Discuss ion

Prologue 3

Evangelium Vitae: Harbinger of Development? 5

The Essence of the Matter: “Human Dignity” 11

Where the Present Debate Stands 17

Part II : Human Dignity and the Imago Dei 28

1) The Biblical Imago Dei

31 2) The Imago Dei of the Church Fathers and Medieval Theologians

35 3) The Modern Imago Dei

40 4) Distinction of Dignities

45 5) “Kant-in-a-box”

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Par t III : The Conve rgence of a Blood Soaked Cen tury, the Pers onal is t i c Norm of John Paul II , and Sr. Hel en Pre j ean

56

Part IV: Whose Prudence , Which Ci ty? 71

Part V: The Severe Mercy of Jus t i c e :

Dis tinc t Rol es of Church and S ta te in Upholding Human Digni ty 89

Conclusion

95

Bibliography 99

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I. Orienting the Discussion

Prologue The law should not imitate nature, the law should improve nature. People invented the law to govern their relationships. The law determined who we are and how we live. We either observe it, or break it. People are free. Their freedom is limited only by the freedom of others. Punishment means revenge. In particular when it aims to harm, but it does not prevent crime. For whom does the law avenge? In the name of the innocent? Do the innocent make the rules? It is with this internal dialogue of a young Polish lawyer preparing for his earnest

and passionate defense of a cold-blooded murderer that the Catholic filmmaker Krzysztof

Kieslowski begins the fifth installment of his ten-volume film, The Decalogue. Each

volume, as one might infer, addresses in some manner each of the Ten Commandments,

with the fifth correspondingly dealing with the fifth commandment, Thou shalt not kill.

It is a fitting place to begin this inquiry insofar as on multiple levels, we see art

imitating life; an immensely thoughtful and talented Catholic filmmaker, like many

present day Catholics, takes as the film’s starting point neither the totality of Scripture

nor natural law, as understood by longstanding tradition, from whence to address the

increasingly contentious dilemma of what to do in ‘civilized’ societies with heinous

murderers. Rather, the consideration begins from a thoroughly positivistic basis

recognizing no inherent natural order from which just human law derives, nor does it

convey an accurate understanding of that which constitutes true human freedom, nor a

right concept of retribution from which capital punishment may be located in principle as

extraordinarily ordered to a restoration of the tranquillitas ordinis or the common good.

Isolated from bases so fundamental to the consideration at hand, it is not difficult to see

why capital punishment proves such a virtually unassailable stumbling block to

contemporary sentiments of decency and civility. The modern project’s effect on

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philosophy, and hence the theologies developing amidst changing philosophic climates,

has been an incremental substitution of the hermeneutic of principled organic continuity

for one of shallow humanism, characterized by fervent feelings, radical doubt, and

distrust of authority. A postmodern mindset has been spawned in the aftermath, one

which no longer has the beneficial formation taken for granted by the modern heralds of

enlightenment, and which thus finds itself set adrift from any objective anchors, driven

forward by earnest passions no longer guided by the reins of firm principle.

There is no clear-cut “solution” to what such an emerging postmodern mindset –

secular as well as believing – sees as the “problem” of the death penalty. As Chuck

Colson noted recently in his personal statement of principled and practical support of

capital punishment, “there is divinely instituted tension that exists between mercy and

justice - a tension that, ethically speaking, may not be eradicated.”1 Like all moral

challenges faced by man, questions of human justice generally, and capital punishment in

particular, require the virtue of prudence – a uniquely elusive virtue2 with which a post-

Kantian, categorical imperative influenced mindset has little, if any, facility, and would

just as soon do away with in favor of a simpler abolitionist absolutism. But the practical

contingent human sphere always – despite false hopes of a moral evolution or progressive

transcendence of our “unenlightened” past – requires the application of timeless general

principles and precepts to particular post-fall circumstances via the virtue of prudence. In

1 Chuck Colson, “Capital Punishment: A Personal Statement.” 2 Namely, it is counted both among the intellectual virtues insofar as it informs the actions of man, while also considered one of the four cardinal moral virtues directive of the moral life of man. Cf. Thomas Aquinas, Summa Theologica, (New York: Benziger Bros., 1981), II-II, q. 47, a. 4: “Now it belongs to prudence, as stated above (A. 1, ad 3, A. 3) to apply right reason to action, and this is not done without a right appetite. Hence prudence has the nature of a virtue not only as the other intellectual virtues have it, but also as the moral virtues have it, among which virtues it is enumberated.”

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the Catholic tradition, such theoretical bases are gathered from the natural law tradition3

and revealed commandments, understood within the context of the parallel realms of the

Two Cities, the civitas hominis and Civitas Dei. While perfect Justice is confessed by the

believing Church to exist only in God and by His hand, justice in terra is never to be

given up on as an ideal to be strived for, and human governing authority has always

participated necessarily in that striving, invited to do so both by the order of nature itself,

as well as by revealed divine approbation. It is within this general understanding that the

present inquiry proceeds.

Evangelium Vitae: Harbinger of Development?

The present debate regarding the issue of capital punishment within the Catholic

Church can be located as magisterially stemming from three paragraphs included in the

papal encyclical Evangelium Vitae (1995). Though the encyclical had as its main intent

explicitly reaffirming the Church’s consistent moral teaching condemning the taking of

innocent life, and in particular the modern scourges of abortion and euthanasia,4 less

explicit references questioning the prudential value of sanctioning capital punishment in

modern societies are included, alluding to “a growing tendency, both in the Church and in

civil society, to demand that [the death penalty] be applied in a very limited way or even

that it be abolished completely.”5 Though there was ample opportunity within the

encyclical to address the death penalty with the same absolute language of principled

condemnation as applied to the other issues, its absence, combined with the Church’s

traditional stance upholding the just right of states to have recourse to this gravest of

3 4 Evangelium Vitae, cf. §57, 62 & 65. 5 Ibid, §56.

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earthly punishments, lends itself to the interpretation of a measured confirmation of the

essential teaching, while initiating a prudential shift in pastoral judgment and emphasis.

Language from these paragraphs within Evangelium Vitae was subsequently included in

the Church’s 1997 revision of The Catechism of the Catholic Church, and Pope John Paul

II, in statements made following the document’s promulgation, increasingly urged

countries to curtail their use of capital punishment in order better to foster a “culture of

life,” going so far as to deem it “cruel and unnecessary.”6

In the early sections of Evangelium Vitae is found the following commentary

regarding the account in Genesis of the murder of Abel by Cain:

And yet God, who is always merciful even when he punishes, “put a mark on Cain, lest any who came upon him should kill him” (Gen 4:15). He thus gave him a distinctive sign, not to condemn him to the hatred of others, but to protect and defend him from those wishing to kill him, even out of a desire to avenge Abel’s death. Not even a murderer loses his personal dignity, and God himself pledges to guarantee this. And it is precisely here that the paradoxical mystery of the merciful justice of God is shown forth.7 [emphasis added]

While this is an interpretation that serves well one of the apparent or at least subtly

implied intents of the encyclical, it is not one that fully comports with the arguably

traditional Augustinian reading of this passage. This is not to argue against the notion

that even a murderer retains in a qualified sense the imaged dignity with which he was

endowed by his Creator, but whether or not the mark of protection is meant to signify a

categorical pledge against just retribution in terra for the unjust taking of human life.

6 “I believe that capital punishment, as the Holy Father said in St Louis, is both "cruel and unnecessary". In essence, it is really a mask that covers the deeper issue we as a society are afraid to face: the lack of respect for human life — particularly of the preborn, the disabled and the elderly. Only when we have the courage to remove that mask, will the sores hidden beneath it cease to fester. Only then will we — as individuals and as a society — begin the process of healing, moving away from a culture of death into a culture of life.” Archbishop Renato R. Martino, “Death Penalty is Cruel and Unnecessary,” originally published in L'Osservatore Romano, February 24, 1999. Cf. http://www.catholicculture.org/library/view.cfm?recnum=877 7 EV, §9.

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Following Cain’s banishment, Genesis goes on to tell of his founding a city, a notion first

developed explicitly by St. Augustine as the symbolic beginning of the civitas hominis.8

This post-fall natural city is one which for all time is to run parallel to the Civitas Dei, a

city “founded” in its earthly incarnation by the blood of Abel and continuing down

through the line of Seth and the children of Abraham in faith, to the full stature of those

incorporated into the divine life by the grace of Christ’s Passion. God’s protection of

Cain has never been definitively taught within the Church’s tradition as in any way a

categorical statement of a divine guarantee to spare all subsequent murderers from ‘this

worldly’ just retribution. Rather, it may be reasonably argued from the balance of

Scripture that prior to the founding of the first city, there was no authoritarian instrument

of God’s justice upon earth by which such a punishment could be rightly administered.

This interpretation accords with a quotation from St. Ambrose directly following the

passage above, though perhaps in a way that would not be as apparent to a casual reader

after what the previous interpretation has set in mind:

As St. Ambrose writes, “Once the crime is admitted at the very inception of this sinful act of parricide, then the divine law of God’s mercy should be immediately extended. If punishment is forthwith inflicted on the accused, then men in the exercise of justice would in no way observe patience and moderation, but would straightaway condemn the defendant to punishment… God drove Cain out of his presence and sent him into exile far away from his native land, so that he passed from a life of human kindness to one which was more akin to the rude existence of a wild beast. God, who preferred the correction rather than the death of a sinner, did not desire that a homicide be punished by the exaction of another act of homicide.9 [emphasis added]

Again, though the distinction is not made evident in this section, the prevention of an

unjust slaying of Cain out of motives of pure revenge, or a similar senseless act of

homicide as that perpetrated by Cain himself, is not the same as a pledge from God that

8 Cf. Augustine, The City of God, (New York: Random House Inc., 1950), Book XV, see Chapters 1, 7, pp. 479, 487. 9 EV, §9.

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the physical life of all future murderers will be shielded from the retributive justice of

God, wielded through an instrument of authoritative state power on behalf of the

tranquillitas ordinis.

This brings us to a second puzzling Scriptural reference within Evangelium Vitae,

although this time it is not so merely because of the interpretation chosen for emphasis,

but rather for that part of the passage entirely left out of the citation. In a section

preceded by the title, “From man in regard to his fellow man I will demand an

accounting” (Genesis 9:5): Reverence and love for every human being, the encyclical

states the following:

Man’s life comes from God; it is his gift, his image and imprint, a sharing in his breath of life. God therefore is the sole Lord of this life: man cannot do with it as he wills. God himself makes this clear to Noah after the Flood: “For your own lifeblood, too, I will demand an accounting…and from man in regard to his fellow man I will demand an accounting for human life” (Gen 9:5). The biblical text is concerned to emphasize how the sacredness of life has its foundation in God and in his creative activity: “For God made man in his own image” (Gen 9:6).10

But an important line is eliminated from this citation directly preceding that provided

from verse 6: “Whoever sheds the blood of man, by man shall his blood be shed; for God

made man in his own image” (Gen 9:6) [emphasis added]. The sacredness of human life

does indeed have its foundation in God and His elective creation, and it is a sacredness

that is so inviolable that its wonton violation is commanded by God to be subject to just

retribution in terra, namely the exacted forfeiture of the murderer’s own physical life. As

paradoxical as it may seem at first glance, the intrinsic link of divinely imaged human

dignity with the command for the murderer’s blood to be shed by man could not be made

more clear, and thus its absence from the passage’s citation in Evangelium Vitae could

not be more glaringly conspicuous. Further, it is noteworthy that this primordial

10 Ibid, §39.

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command is found not only in this passage, but is in fact the only command included in

each of the five books of the Pentateuch.11

Regarding the import of this foundational and unambiguous prescription of what

is allowed for murderers, conjoined with the ‘why’ it is to be done, a command predating

the particular covenant made with Israel, Chuck Colson writes,

The function of biblical sanctions against a heinous crime such as murder is to discourage the wanton destruction of innocent life… It is because humans are created in the image of God that capital punishment for premeditated murder was to be a perpetual obligation. To kill a person was tantamount to killing God in effigy. The Noahic covenant recorded in Genesis 9 antedates Israel and the Mosaic code; it transcends Old Testament law per se and mirrors ethical legislation that is binding for all cultures and eras.12 [emphasis added]

Could it be that a command so prominently featured in the Old Testament is one which

the New Law of Grace renders obsolete? Has fallen mankind evolved morally alongside

his technological progress to such a degree that not only the individual Christian soul is

called in grace to forgive personal grievous offences and turn the other cheek to his

oppressor, but the very state, or civitas hominis, is itself to judge such offenses as due no

greater penalty than that meted out for much less grave crimes? There is simply no

support found within the Church’s tradition for a categorical “statute of limitations”

interpretation of either the primordial command found in Genesis, or the affirmations of

authoritarian retribution in the Gospels and Epistles of the New Testament.13

In a response to an inquiry regarding what the official position of the Catholic

Church was on capital punishment, the late Fr. John Neuhaus included the following in

his overall summary,

11 Cf. Gen 6:9, Ex 21:12-14, Lev 24: 15-17, Num 35: 15-34, Deut 19:11-21. 12 Colson, “Capital Punishment: A Personal Statement.” 13

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The right of the state in justice to execute criminals is not denied. EV suggests that the only legitimate reason to do that is if there is no other way to protect society. In this connection, the encyclical makes no reference to retributive justice, which has been an important part of the Catholic tradition’s teaching on the death penalty and on punishment more generally. EV does not explicitly deny the claims of retributive justice, but their absence from the argument is undoubtedly significant… What we may be witnessing here is what Cardinal Newman called the development of doctrine. The critical question, I believe, is retributive justice, and the policies that that entails.14 [emphasis added]

Such an absence is undoubtedly significant, but as will be more fully addressed below, it

is far from clear that such a glaring absence is capable of being interpreted as truly

faithful to tradition, nor unassailable in the prudential sphere. As Justice Scalia inquired

in his address to the Pew Forum Conference on Religion and the Death Penalty (2002),

Is it prudent when one is not certain enough about the point to proclaim it as an article of faith – and with good reason given the long and consistent Christian tradition to the contrary? Is it prudent to effectively urge the retirement of Catholics from public life in a country where the federal government and 38 of the states, comprising about 85 percent of the population, believe the death penalty is sometimes just and appropriate? Is it prudent to imperil acceptance of the church’s hard but traditional teaching on birth control and abortion, teachings that are ex cathedra – a distinction that the average Catholic layman is unlikely to grasp – by packaging them under the wrapper, “respect for life,” with another doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, they are all three made up. In short, this does not seem to me the course of prudence.15

In his article arguing for a prudentialist reading of the document grounded by and

oriented within the Church’s larger tradition, Dr. Steven Long writes,

The witness of tradition is important not only for the sagacity of its arguments. For the interpretation of Evangelium Vitae must take account of a basic principle: as a magisterial document, its meaning is constituted in relation to tradition. The claims for doctrinal development have, so far, seemed to ignore this fact.16 [emphasis added]

Even among those who disagree as to the ultimate moral value and sanctioning of capital

punishment, there is general agreement that the shift in tone and direction inaugurated by

14 John Neuhaus, “A Position Not, or Not Yet, Mandated”, First Things, April 1, 1998. 15 Justice Antonin Scalia, “Religion, Politics and the Death Penalty”, Pew Forum Conference: A Call For Reckoning: Religion and the Death Penalty, Key Note Remarks, Session 3. 16 Steven Long, “Evangelium Vitae, St. Thomas Aquinas, and the Death Penalty”, The Thomist 63 (1999), 513.

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key sections in Evangelium Vitae, and succeeding editions of the Church’s official

Catechism on the matter, has not constituted a categorical departure from, nor

development of, the Church’s traditional stance regarding this right of the governing

state. As argued ably by Dr. Long, there are two opposing ways in which the passages in

question may be received, namely, either by a reductionist or a prudentialist reading.

Again, while there are many contributors to the current debate on this matter who are in

agreement that a reductionist reading entirely dismissive of tradition is untenable, the

same are yet divided regarding the question of the wisdom, and indeed prudence itself, of

the far ranging scope and import of the predominant prudentialist reading of the relevant

sections of the document. Perhaps, as Justice Antonin Scalia characteristically quipped in

addressing this controversial dilemma of Evangelium Vitae’s intent and reach, some new

staffers may be needed at the Congregation of Prudence in the Vatican.17 But while these

two positions within the general prudentialist interpretation will be represented and

briefly overviewed below by some of the most lucid and prominent thinkers on both sides

of the debate, there is yet a further dimension to the argument that will be developed

herein and argued on behalf of.

The Essence of the Matter: “Human Dignity”

The two Scriptural references noted above and their selective use within

Evangelium Vitae serve as foundational springboards into the question of the true nature

of human dignity as witnessed to by tradition. This question then raises another, namely

whether the taking of a murderer’s life by the state can be argued as morally just in

principle, and thus incapable of suffering a development, properly understood, within

17 Justice Antonin Scalia, “God’s Justice and Ours”, First Things, no. 123, May 2002.

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Catholic moral teaching. At play in this consideration are primarily foundational

principles drawn both from natural law and revelation on the one hand, while necessarily

involving at various levels countless circumstantial particulars and determinations of the

natural law on the other. Given the vast terrain of the circumstantial particulars involved,

application of those foundational bases requires particular prudential judgments which do

not allow for the kind of categorical prohibition wished by some earnest faithful to be just

around the magisterial corner. In examining this question, the relation borne to this

inquiry by the oft referenced, but divergently interpreted, notions and implications of

human dignity repeatedly alluded to in Evangelium Vitae is of paramount importance. In

particular, the impact of Kantian ethical idealism and the related emergence of Christian

personalism will be evaluated in an attempt to determine how precisely the dignity of

man as created in the image of God is to be understood in relation to Scripture, Tradition

and contemporary episcopal and pastoral missives. Does the relatively new formulation

of human dignity, in the sense adopted by the United Nations and within modern liberal

democracies, ultimately forswear retributive justice in terra in the case of heinous acts of

murder, as would seem on the surface to be the current societal and episcopal trends? Or,

as will be argued here, is it not rather precisely the intrinsic value of divinely imaged

human life itself – a value rooted in the Creator as Source and End of each individual, in

contradistinction to being rooted in persons as autonomous neo-Kantian “ends-in-

themselves” – attested to so unambiguously by Scripture and the consistent tradition of

the Church, that imbues governmental instruments of authority with the just prerogative

of elevating and protecting its value through prudentially proscribing violations thereof

with the ultimate earthly penalty. For in so doing, the societal instrument of authority

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performs its ultimate function of guarding the common good through the pedagogical

function of human law, which if it is to carry the force of truly just law will reveal its

claims to be rooted in the very natural law itself, and thus the eternal law in which it

participates, albeit in a limited and thus necessarily imperfect fashion. Though there is

some merit to arguments that modern society’s growing ignorance of any sense of a

transcendent order of justice diminishes the pedagogical value of human law mirroring

that order, the proper reaction to such ignorance is not to cede ground to such a darkening

advance. As remarked by Justice Scalia regarding this alarming trend,

It seems to me that the reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should be not resignation to it but resolution to combat it as effectively as possible, and a principal way of combating it, in my view, is constant public reminder that – in the words of one of the Supreme Court’s religion cases in the days when we understood the religion clauses better than I think we now do – “we are a religious people whose institutions presuppose a supreme being.”18

Echoing this sentiment, J. Budziszewski acknowledges, “I do not know whether our

society can be brought back to believe in a transcendent order of justice, but of this I am

certain: if we who do recognize this standard do not act as though we believe in it, then

no one will be brought by us to believe in it.”19 And Mary Kochan, in responding to an

article by Avery Cardinal Dulles wherein this point is invoked, made the following

important observation:

Cardinal Dulles seems to want to make the legitimacy of the administration of the penalty dependent in some way upon the self-understanding of society. Once the penalty has been reduced to this symbolic function, he argues that the symbolism is only “authentic” if the society believes in “a transcendent order of justice.” This criterion is hardly consonant, as William F. Buckley, Jr. has suggested, with the classical tradition. There is no reason to think that, at the time that St. Paul wrote to the Romans, belief in “a transcendent order of justice” generally informed the civil authority. This authority, which permitted infanticide, slavery, and blood sports, was, according to the Apostle,

18 Scalia, “Religion, Politics and the Death Penalty”. 19 J. Budziszewski, “Capital Punishment: The Case for Justice”, First Things, no. 145, August/September 2004, 42.

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“the servant of God to execute His wrath,” not because of what the society believed but because God had instituted this authority.20

It must be noted however, that the issue of natural institution is not questioned by the

argument of Cardinal Dulles, nor is the “right” of the state to impose the penalty. Rather,

what is questioned is the medicinal effect of the penalty and whether it might be impeded

in its application given contemporary societal circumstances. As he stated in 2000,

The pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good. I personally support this position.21

It is this understanding that undergirds Dr. Steven Long’s proposed prudential reading

of Evangelium Vitae, which “stresses the moral evacuation of the common good wrought

by the culture of death, and the consequent loss of that social intelligibility essential to

the primary medicinal end of the death penalty.”22 ‘Prooftexting’ this issue on either

side of the debate is insufficient, but it is important to incorporate the witness of tradition,

Scripture and the historical record itself, in addressing claims that societies’ diminishing

sense of a transcendent order of justice justifies a default reduction of medicinal

punishment to the aspect of defense of society primarily or solely. Though it may be

granted that much of contemporary American society has lost the deeper sense of the

Founders’ enshrined proclamation of the transcendent source of her governing principles,

if any society has hope of recovering this sense, as witnessed to by Pope Benedict’s

remarks in his 2008 visit to the White House, it is America:

20 Mary Kochan, “Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment”, First Things, August/September 2001. 21 Dulles, “The Death Penalty: A Right to Life Issue”, October 17, 2000, cf. http://features.pewforum.org/death-penalty/reader/17.html 22 Steven Long, “Evangelium Vitae, St. Thomas Aquinas, and the Death Penalty”, 514.

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From the dawn of the Republic, America’s quest for freedom has been guided by the conviction that the principles governing political and social life are intimately linked to a moral order based on the dominion of God the Creator. The framers of this nation’s founding documents drew upon this conviction when they proclaimed the "self-evident truth" that all men are created equal and endowed with inalienable rights grounded in the laws of nature and of nature’s God.23

In addition to highlighting defenses that have been made of the retributive

function of human justice as paramount in regard to defense of the dignity of innocent

life that is violated, it will be argued that the intrinsic “non-comparative” dignity of the

murder himself is not itself violated with the loss of his physical life at the hands of

retributive state wielded authoritarian justice. It is rather an impoverished materialist

worldview that sees only the biological life of the organism as constitutive of the dignity

of the human person. While it is more understandable how such views are countenanced

by secular opponents of capital punishment, it is not so with those members of the

Church who hold claim to so rich an inheritance of revelation and developed insight into

the divinely imaged yet fallen human condition, and the transpolitical end to which each

member of the human race is supernaturally ordered. Such a state of affairs, as will be

argued here, indicates that a restoration of these foundational bases of the Church’s

theological tradition, namely the doctrines of the Imago Dei and the Two Cities, are

necessary in order that she not be conformed to the world, but rather be transformed –

and hence truly transformative – through the renewal of her mind (Romans 12:2).

Before turning to this central question of the true source and meaning of the

ubiquitous contemporary references to “human dignity,” with its attendant claim to

inviolable “rights,” a summary of where key aspects of the prudentialist debate has

traversed thus far is in order. One of the difficulties which will be revealed is that those

23 Pope Benedict XVI, “Faith Sheds New Light on All Things”, Address to President Bush, April 16, 2008.

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bishops who countenance and forward the prudentialist interpretation nevertheless

promulgate pastoral missives that are ultimately abolitionist in desired effect, and

therefore dismissive of the prudential order of the State itself, and the Catholic citizen’s

constitutional responsibilities therein. Following this summary, the modern liberal

democratic concept of human dignity and its relation to the traditional doctrine of the

Imago Dei will be investigated, in its very development as well as present varied

interpretations and imports, in order to better address the claims made against capital

punishment on its behalf (Part II). In an excursus, the popular abolitionist writings of Sr.

Helen Prejean and her alleged influence upon Pope John Paul II regarding capital

punishment in the present day will be overviewed and evaluated (Part III), after which a

general account of the distinction between the prudential jurisdictions and responsibilities

of Church and State with respect to defense of human dignity will be offered (Part IV),

concluding with a presentation of the concept of “severe mercy” as being the necessary

and salvific tension inhabiting the dual but decidedly distinct mysteries of human iniquity

and redemption (Part V). Such an acknowledgment, which invites restoration of the

traditional approach guided by the doctrinal understanding of human dignity as rooted in

the Imago Dei, and the doctrine of the Two Cities with its respectful approbation of

prudential politics, can serve to remind the Christian community of the revealed origin of

liberal democracy’s transposed doctrine of human dignity and rights, and thus provide the

present debate on capital punishment with much needed clarity, both with regard to the

terminology utilized as well as the distinct order of ends involved.

This present work is not primarily an isolated nor partisan argument on behalf of

the death penalty, but a defense of the Church’s traditional teaching with respect to the

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source and nature of human dignity and the neglected wisdom inherent in the doctrine of

the Two Cities. However, given a fuller understanding of what comprises human

dignity, it will be evinced as not the sort of thing capable of being violated by the State,

should it decide within the proper sphere of prudential politics, and given its particular

constitutional framework and judicial procedures, to carry out just such a capital

sentence. As repeated often by columnist, author and lecturer Dennis Prager, clarity is

often to be preferred to agreement, and again, much clarity is to be desired regarding

those issues wherein diverse notions of human dignity determine a variety of positions

that, if not in outright contradiction to one another, are at least in considerable and

unsustainable tension.

Where the Present Debate Stands

In his summary of Catholic teaching regarding capital punishment since the

promulgation of Evangelium Vitae, Cardinal Dulles begins by stating that it was

generally agreed in the Church that, having a firm founding both in Scripture and the

common doctrine of the Fathers and Doctors of the Church, “the state had the right and

sometimes the duty to impose the death penalty for certain heinous offenses.” 24 He

points out that early in the 13th Century, Pope Innocent III made acceptance of this

doctrine a condition of reconciliation with the Church for Durand of Osca and his

Waldensian companions who denied it. They were required to subscribe to the following

proposition: “Concerning secular power we declare that without mortal sin it is possible

to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred

24 Avery Cardinal Dulles, “Faith Traditions and the Death Penalty”, Pew Forum Conference: A Call For Reckoning: Religion and the Death Penalty, Key Note Remarks, Session 1.

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but in judgment, not incautiously but advisedly.”25 In addition, as late as 1955 the

Catholic Church defended the role of the state in upholding capital justice. As noted by a

respondent to Cardinal Dulles in the pages of First Things,

In addressing Italian Catholic jurists, Pius XII reaffirmed the Church’s historic recognition of vindicatory as well as therapeutic penology, noting that this was “in conformity with what sources of revelation and traditional doctrine teach regarding the coercive power of legitimate human authority.” The mandate of Romans 13:4, noted the pontiff, is “as little determined by time and culture as the nature of man and the human society by nature itself.”26

Fourfold Purpose

The death penalty has been judged by the balance of Western civilization as

fulfilling four general purposes of medicinal punishment: retribution, defense of society

against the criminal, deterrence, and rehabilitation. The preeminent purpose, as Cardinal

Dulles acknowledges in both his remarks and writings on this topic, has generally been

understood to be retribution.27 Dulles goes on to point out that while the 1992 Catechism

of the Catholic Church restated the classical position, the effect of key paragraphs within

Evangelium Vitae in 1995, along with subsequent statements by John Paul II urging

countries to curtail their use of capital punishment in order to better foster a “culture of

life,” was that the Catechism was revised in accordance with those statements, altered to

reflect the specific language used in the encyclical. The changes to the Catechism in

25 Denzinger, The Sources of Catholic Dogma, “Profession of Faith Prescribed for Durand of Osca and His Waldensian Companions”, Eius Exemplo, December 18, 1208, (Fitzwilliam: Loreto Publications: 2007), 168. 26 J. Daryl Charles, “Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment”. 27 This, as will be seen below, is in conflict with Sr. Helen Prejean’s repeated emphasis of “the right of society to self-defense” as being the Church’s chief traditional basis for sanctioning the state’s right to execute murderers.

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1997 of the passages relevant to the Church’s teaching regarding capital punishment are

here represented graphically:28

2265 Legitimate defense can be not only a right but a grave duty for someone responsible for another’s life, the common good of the family or of the state. Preserving the common good requires rendering the unjust aggressor unable to inflict harm. To this end, those holding legitimate authority have the right to repel by armed force aggressors against the civil community entrusted to their charge. 2266 Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason the traditional teaching of the Church has acknowledged as well founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty. For analogous reasons those holding authority have the right to repel by armed force aggressors against the community in their charge. The State’s effort to contain the spread of behaviors injurious to human rights and the fundamental rules of civil coexistence corresponds to the requirement of watching over the common good. Legitimate public authority has the right and duty to inflict penalties commensurate with the gravity of the crime. The primary effect of punishment is to redress the disorder caused by the offense. The primary scope of the penalty is to redress disorder caused by the offense. When his punishment is voluntarily accepted by the offender, it takes on the value of expiation. Moreover, punishment has the effect of preserving public order and the safety of persons. Finally punishment has a medicinal value; as far as possible it should contribute to the correction of the offender. Moreover, punishment, in addition to preserving public order and the safety of persons, has a medicinal scope: as far as possible it should contribute to the correction of the offender. 2267 The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor. If instead bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should will limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person. Today, in fact, given the means at the State’s disposal to effectively repress crime by rendering inoffensive the one who has committed it, without depriving him definitively of the possibility of redeeming himself, cases of absolute necessity for suppression of the offender “today…are very rare, if not practically non-existent.”

In reaction to this new language of the Church’s Catechism, American Bishops

have issued a number of statements urging Catholic faithful to work towards the abolition 28 Cf. Kevin L. Flannery, S.J, “Capital Punishment and the Law”, Ave Maria Law Journal, 5:2, 2007, translation from the editio typical and graphical layout the author’s.

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of the penalty entirely, though couched in terms of prudential moratoriums on account of

the many injustices argued to be inherent in the system, in addition to its alleged

contribution to “a culture of death.” In November 2001, The United States Conference of

Catholic Bishops issued a pro-life pastoral plan labeling the death penalty a “scandal,”29

and which included three paragraphs against it. In March 2005, the Conference launched

“The Catholic Campaign to End the Use of the Death Penalty,” issuing a new pastoral

statement, A Culture of Life and the Penalty of Death, “that will clarify Church teaching

and assist the numerous individual bishops and state Catholic conferences.”30 While there

is much to consider regarding these developments and the manifold ways in which such

shifts have been interpreted by the faithful, it is worthy of note how this decidedly

prudential teaching of the magisterium has been promulgated, particularly within the

United States, and especially in light of the reemphasis in Lumen Gentium of the

preeminence of the bishops’ principal tasks of preaching the gospel and “the faith to be

believed and put into practice”.31 Such episcopal promulgations as have become the

norm would seem to significantly neglect the traditional doctrine of the “Two Cities,” as

29 USCCB, Pastoral Plan for Pro-Life Activities: A Campaign in Support of Life, Introduction; excerpt from main paragraphs: “The United States is the only Western industrialized nation today that utilizes capital punishment. Increasingly the bishops have spoken out against its use, and Pope John Paul II and individual bishops have sought clemency for persons scheduled to be executed. There are compelling reasons for opposing capital punishment—its sheer inhumanity and its absolute finality, as well as concern about its inequitable use and an imperfect legal system that has sentenced innocent people to death. As the Catechism of the Catholic Church reminds us: "If...non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person" (no. 2267). Executing the guilty does not honor one who was killed, nor does it ennoble the living or even lessen their pain, for only love and forgiveness can do that. State-sanctioned killing affects us all because it diminishes the value we place on all human life. Capital punishment also cuts short the guilty person's opportunity for spiritual conversion and repentance” [emphasis added]. Cf. www.usccb.org/prolife/pastoralplan.shtml 30 Cf. http://www.usccb.org/sdwp/national/deathpenalty/ It is worthy of note, however, that such regional Conferences as the USCCB do not have authority to formulate Church teaching on faith and morals nor promulgate in the documents they produce anything other than what is the definitive teaching of the universal and magisterial Church. 31 Lumen Gentium, Chapter 3, §25.

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well as considerations of the nature of the Church’s prudential teaching authority, within

which may be identified infallible and fallible levels, a distinction which will be more

fully explicated in Part IV below. In addition, given the nature of capital punishment –

namely that it involves countless particulars, and as a political matter falls within the

discretion and proper jurisdiction of the governing state – while the hierarchical

leadership of the Church has every right itself to be a voice of influence regarding moral

issues faced by secular governing authorities, the state maintains its own independent

sphere of prudential judgment.32 And within this sphere, Catholic citizens, when facing

an issue of civic judgment not identified nor condemned by the Church as per se malum,

retain a prudential discretion of their own. The repeated references by some bishops to

the need for a “consistent ethic of life” lends itself to a confusion and clouding of “life

issues,” contributing to the danger of fostering a perception of moral equivalency

between these which is decidedly not present in the magisterial document that

inaugurated and energized this shift in pastoral exhortations. In addition to such

pronouncements and campaigns, the pope and bishops have regularly pleaded for

clemency in capital cases, leaving Cardinal Dulles to offer the following observations:

Prima facie, then, it would seem that the teaching on the death penalty has changed from approval in the past to disapproval in the present. What was previous seen as licit or even mandatory is now seen as forbidden. Now, the reversal of a doctrine so well established as the legitimacy of capital punishment would raise serious problems about the credibility of a number of other magisterial pronouncements, since the magisterium is accustomed to argue from Scripture as interpreted by long-standing Catholic tradition on many other issues. Even if it is possible to reverse this doctrine, one could ask, what would be needed to reverse it? I think you would need competent authority to declare that the previous teaching was in error and show arguments from reason or revelation why the new doctrine is better. But Pope John Paul II and the bishops have never been critical of the tradition. In fact, they’ve appealed to the tradition in proposing their own positions. So, I think that that teaching ought to be understood, if possible, in continuity with the tradition rather than as a reversal. If the new position is a reversal of the past, one could ask how long that’s going to last; also, isn’t it also going to be reversible, and wouldn’t a Catholic

32 Cf. Gaudium et Spes, Chapter 3, §36.

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feel more warranted in following a tradition that had stood up for 2,000 years rather than a tradition that started yesterday? So that it would put the faithful in somewhat of a quandary of having to choose between the classical doctrine and contemporary teaching.33 [emphasis added]

He goes on to contend however that it is not inevitable that such a choice will have to be

made because of a “third way,” or the prudentialist reading referenced above, in which

the recent changes may be interpreted. Namely, that while arguably just in principle as

reflected in Scripture and Tradition, there is “tentatively proposed a third rationale for

concluding that the death penalty should rarely if ever be imposed today.”34 Briefly, the

initial two interpretations, which the Cardinal rejects as illegitimate, are the following.

Firstly is the simple abolitionist position, which maintains it is never legitimate to

deliberately take a human life, that killing as a secondary effect of self-defense alone is

licit. This interpretation is dismissed by Dulles, as neither the words of John Paul II nor

the Catechism categorically deny that under certain circumstances there could be a

legitimate need to kill the offender, and in executing the criminal the intention is

obviously to kill. The second interpretation contends that the recent changes in the

Church’s language and pastoral emphasis are evidence of a genuine development of

doctrine underway; that whereas four legitimate aims have been traditionally recognized,

33 Dulles, “Faith Traditions and the Death Penalty”. 34 Ibid; “Some theologians, in an effort to assure Catholics that traditional teaching on the death penalty remains unchanged, go to great lengths to explain that the Catechism revision has not changed the church’s “core doctrine” on the death penalty, only its practical or “prudential” application. In other words, they argue that the church now teaches that the death penalty, while still justifiable in principle, is inappropriate in practice – most of the time. Nothing’s really changed in church teaching, they argue; there may still be circumstances, albeit rarely, when state-approved capital punishment is acceptable. And if reading that kind of split-level thinking makes your soul weary, it’s because it’s confusing, and it arises from a desire to hold on, no matter what, to Catholic traditional teaching on the death penalty. But if in principle the church still holds that in some instances governments are allowed to execute their citizens, we can be sure that government officials will be quick to summon that principle to justify seeking the death penalty for crimes they consider particularly heinous. But you won’t catch Pope John Paul II using such obfuscating language. Every chance the pope gets, he comes out foursquare against the death penalty and asks Catholics to work toward its abolition – such as when he came to St. Louis in 1999” [emphasis added]. Sr. Helen Prejean, The Death of Innocents, (New York: Random House, 2005), 132.

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now they have been effectively reduced to one, i.e., the physical self-defense of society

against the criminal. This interpretation also has serious difficulties, chief among them

doing away with the primary purpose of punishment, recognized, albeit diminishedly,

both by the Pope and the Catechism as redressing the disorder caused by the offense, that

is, retributive in nature. Cardinal Dulles goes on to raise a critical question regarding this

interpretation,

Isn’t the defense of the public order as a moral order important for the defense of society itself? Is it legitimate to reduce the defense of a society against the criminal to a physical defense against the potential aggressive acts of this particular criminal, or is it a defense of the moral order that’s needed to sustain a moral, social system?35

While the Cardinal valiantly attempts to reconcile the new language and presentation of

the Catechism on this issue with the Church’s previous emphasis upon the end of

redressing disorder, as Christian Brugger, Charles Rice and others have pointed out, the

Catechism’s analysis seems to strictly tie the death penalty to a model of self-defense.

Brugger, writing from an anti-death penalty position, responded to Cardinal Dulles’

article, Catholicism & Capital Punishment, with some significant challenges to such a

proposed prudential reconciliation:

Whereas the Catechism’s predecessor the 1566 Roman Catechism, treats capital punishment under a subsection headed “exceptions” to the Fifth Commandment, and most systematic treatises, at least since Trent follow Aquinas and treat it under the heading, “whether it is lawful to kill malefactors,” no. 2267 places its treatment within a subsection entitled “legitimate defense” (defensio legitima)…When the 1917 and 1983 Codes of Canon Law use the related term “legitimate defense” (legitima tutela), they, like Aquinas, are referring to legitmate killing in private acts of self-defense, implying the same limitations on intent. No. 2267 is clear as to the nature of a case falling under the designation “legitimate defense,” namely, “cases in which the execution of the offender is an absolute necessity.” But when the concept of “necessary defense” is found in theological literature prior to Vatican II in relation to questions of legitimate homicide, it is used almost exclusively to refer to the killing of aggressors by private persons in self-defense…Second, capital punishment, as well as all acts of “legitimate” killing, are subsumed under a model of “double-effect.” No. 2263, the first in the subsection,

35 Dulles, “Faith Traditions and the Death Penalty”.

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introduces double-effect reasoning to show that not all actions which result in killing are intentional killing and forbidden by the Commandment; indeed, the teaching that controls the whole of the subsection is that what the Commandment excludes as murder is intentional killing. The subsection briefly departs from this motif in no. 2266 to introduce punishment’s “primary purpose,” i.e., redressing the disorder introduced by a deliberate crime (i.e. retribution), but then implicitly returns to it in 2267, where a legitimate act of capital punishment is defined, not in terms of “punishment” as specified in 2266, but rather in terms of “self-defense” as defined in sections 2263-2265…According to the Catechism’s own definition of punishment, the act defined as poena mortis (“capital punishment”) in no. 2267 is not in fact an act of punishment, but rather an act of collective self-defense on the community’s behalf by the state…The new framework leads me to conclude that the Catechism is laying a theoretical foundation for a change (not “development” precisely understood) in the Church’s teaching on the death penalty that would at minimum state that the exigencies of retribution (i.e., of the need to redress the disorder introduced by a criminal’s crime) are never a sufficient condition for the inflicting of capital punishment. That is to say, death as a punishment is never legitimate.36

Cardinal Dulles counters that Professor Brugger’s stratagem fails in his opinion because,

“the principle of double effect does not apply if the evil effect is intended (CCC, 2263).

In the case of capital punishment, the intended object of the act is precisely the death of

the offender.” He continues,

If the Pope and the bishops were abolitionists like Prof. Brugger, one could sympathize with Prof. Charles [Rice] and the anti-revisionists, who support the biblical heritage as against the contemporary Magisterium. But as I understand it, the Magisterium is saying that although the biblical and traditional doctrine was sound in principle, there are special circumstances in our own day that make the application of the death penalty undesirable.37 [emphasis added]

These “special circumstances” alluded to by Cardinal Dulles, responsible for the placing

of the penalty primarily under the auspices of defense, are a result of the prudentially

argued impediment of the traditional primary medicinal purpose, namely that of

manifesting the truth of the divine order of justice both to the criminal and to society at

large, allegedly due to contemporary societal factors (i.e., the “culture of death), thus

36 E. Christian Brugger, “Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment”. 37 Dulles, “Faith Traditions and the Death Penalty”.

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leaving the medicinal aspect of defense as alone reasonably or effectively able to be

upheld in our day.38

In his remarks to the Pew Research Forum Conference on Religion and the Death

Penalty, Justice Antonin Scalia addressed this main point of contention between those

who both give Evangelium Vitae a prudentialist read with respect to its brief paragraphs

addressing capital punishment. Again, while the document seems to restrict any potential

administration of the death penalty to those cases where the physical defense of society

cannot be secured by any other means, which in turn appears to significantly downplay, if

not dismiss for all practical purposes, the retributive element of justice traditionally

recognized by the Church, Cardinal Dulles’ more generous interpretation of the text is not

judged by Justice Scalia as practicably tenable:

Cardinal Dulles says that what “defends society” means and includes is vindicating social order; in other words, the function of retribution, although he can’t think of any instance where it would be usable. The problem with that is if that’s what it means, if it includes retribution, how can it possibly be that steady improvements in the organization of the penal system somehow no longer render the death penalty a uniquely appropriate means of retribution? One would think that the better the penal system gets, the less adequate a substitute for the death penalty it is… On the other hand, it must be admitted that the encyclical, earlier, does say that the primary purpose of the punishment which society inflicts is to redress the disorder caused by the offense. So there is ambiguity there…39

This ambiguity continues to plague the debate concerning the nature of the

changes inaugurated by John Paul II in Evangelium Vitae and incorporated, if not

definitively ratified, in the 1997 edition of the Catechism of the Catholic Church.

However, the enduring ambiguity has not impaired the pastoral directives of many

Catholic bishops, particularly in the United States, that are decidedly abolitionist in 38 For an excellent exposition of the prudentialist reading of the document within the context of tradition and a more extensive treatment of the doctrine of St. Thomas and the distinctions inherent within the medicinal ends of punishment, cf. Steven Long, “Evangelium Vitae, St. Thomas Aquinas and the Death Penalty”, The Thomist 63 (1999): 511-552. 39 Scalia, “Religion, Politics and the Death Penalty.”

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emphasis, and arguably not grounded in a realist perspective, or at least not unassailably

prudential. The language enlisted in such directives, as will be more fully addressed

below, reveals itself to be highly influenced by the modern transposition of the doctrine

of the Imago Dei, namely, into a restrictive conception of human dignity and rights

neglectful of important dimensions of the fuller transpolitical Christian notion. This

move, which no doubt is motivated by sincere pastoral instincts and an earnest desire to

constructively collaborate with changing societal sensibilities, is yet one which blurs

critical distinctions traditionally emphasized by the Church in offering moral guidance to

the Christian faithful and society at large. To give two examples of this “trickle-down”

incorporation as it has been propagated to the faithful, and to demonstrate that such

propagations are not merely found with those bishops considered to be “liberal,” consider

the following. After reprinting a letter from a member of his diocese who had suffered

the loss of a family member to homicide, Archbishop Charles Chaput wrote the

following,

Cathlynn Morse, the mother of a murdered son, wants the death penalty to end. Believing Catholics around the country, of every political party, need to work together to make that happen. The “sanctity of the human person” is a powerful and true idea built on powerful and true words. But ultimately, words are cheap. Actions matter. The moment to act is now. It’s time to end capital punishment – now.40

This is a significant statement coming from the head of what is considered one of the

most “conservative” and flourishing dioceses in the country. It is a position shared with

equal fervency by fellow bishops who are perceived as decidedly more “liberal” as well:

Simply put, we believe that every person is sacred; every life is precious - even the life of one who has violated the rights of others by taking a life. Human dignity is not qualified

40 Archbishop Charles J. Chaput, “Justice, Mercy and Capital Punishment.”

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by what we do. It cannot be earned or forfeited. Human dignity is an irrevocable character of each and every person.41

This statement by Cardinal Mahoney, which echoes those of Sr. Helen Prejean, whose

influential popular writings on the topic of capital punishment will be addressed in Part

III, invite much needed clarification regarding what is meant by “human dignity,” as well

as whether capital punishment for grave capital crimes constitutes a violation thereof

simply. While given proper qualification, the Cardinal might be right in stating that

human dignity is an “irrevocable character of each and every person,” such a statement

does not adequately address the questions faced by particular constitutional jurisdictions

regarding prudential judgments of just punishments to be meted out to those who commit

grievous offenses in violation of the dignity of others.42 The difficulty with the

prudentialist reading as admirably explicated and defended by Cardinal Dulles and

others, is that it is decidedly not so read by many of the Church’s own episcopal heads, or

who, while alluding to the prudential element, nevertheless promulgate to the faithful a

moral call for categorical abolition of the penalty leaving no room for civic prudence

should such a case of “absolute necessity” arise. Before turning to the doctrine of the

Two Cities and the questions of prudence within each, it is first necessary to establish

whether or not what is inferred by diverse proponents of “human dignity” across political

and religious lines is consistent with revelation and the tradition to which that revelation

has been entrusted.

41 Roger Cardinal Mahoney, “The Catholic Church and the Death Penalty,” June 5, 2000. 42 As argued by C.S. Lewis in his essay The Humanitarian Theory of Punishment, “to be punished, however severely, because we have deserved it, because we ‘ought to have known better’, is to be treated as a human person made in God’s image.” Cf. http://www.angelfire.com/pro/lewiscs/humanitarian.html

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II. Human Dignity and the Imago Dei

The death penalty costs too much. Allowing our government to kill citizens compromises the deepest moral values upon which this country was conceived: the inviolable dignity of human persons.43 “Human Dignity” is at present a term fraught with ambiguity, enlisted by various

and often opposing sides of complex moral debates. As Leon Kass put it, “Discussions

of human dignity are, alas, not generally known for their concreteness.”44 Among other

issues, it is cited in defense of euthanasia as well as by those opposed to capital

punishment. It does not reference something that is easily isolated nor universally

recognized with any specificity, even as it is increasingly called upon as a supposed and

sure norm by which defenders or opponents of various contemporary moral issues can

close their respective debates. In service of clarity, its origin in the doctrine of the Imago

Dei and the modern transposition of that developed doctrine must be distinguished, in

order that its inherent integrity and usefulness might be recovered and upheld amidst the

complex moral scenarios increasingly faced by the Church in a postmodern world. In

pursuing such clarification of the term “human dignity,” this section will primarily

overview the arguments of Robert Kraynak, who sees the term as having sustained its

most radical transformation in the wake of Kantian ethical idealism, an influence that has

had the leveling effect of politicizing what is an essentially spiritual teaching with a

decidedly transpolitical end. In complement to the work done by Kraynak, this section

will also utilize recent writings servicing the clarification of the concept of human dignity

within the emerging field of bioethics.

43 Sr. Helen Prejean, Dead Man Walking, (New York: Random House, 1993), 197. 44 Leon Kass, “Defending Human Dignity,” Human Dignity and Bioethics: Essays Commissioned by the President’s Council on Bioethics, (www.bioethics.gov : March 2008), 306.

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In Christian Faith and Modern Democracy: God and Politics in the Fallen

World, Kraynak argues that when making political judgments, modern Christians

proceed in a way that is qualitatively different from that of their premodern Christian

brethren. Whereas, as alluded to above, the traditional approach to the temporal realm

was guided by the doctrine of the Two Cities and by prudential politics, Kraynak

develops the thesis that the ethical idealism of Kant has been the most important

influence in altering Christianity’s language and thinking with respect to the best form of

human government and its authoritative relation to individual men. He writes,

Modern Christians do not view the choice of the political regime as a prudential choice of the temporal realm. The see it as a ‘categorical imperative’ of Christian ethics that requires one and only one legitimate political regime in all circumstances, namely, a democratic form of government based on human rights. This conception of politics is no longer prudential because it diminishes the independence and flexibility of the temporal realm and makes political choices a direct deduction from first principles of the spiritual realm. Politics becomes an unconditional duty flowing from the Christian notion of human dignity – a direct deduction from the claim that all are made in the image of God or that all are children of God. I infer, therefore, that a change in the interpretation of the Imago Dei is the decisive factor underlying the dramatic change in Christian politics…45 [emphasis added]

While the scope of Kraynak’s argument is much broader than the question of the

prudential morality of capital punishment, his treatment of the impact of Kantian ethical

idealism and the resultant “new Imago Dei” on the modern Christian conception of

human rights goes to the heart of such a dramatic shift in the Church’s language and

pastoral exhortations, as well as secular liberal trends questioning the morality and just

nature of the death penalty.

Kraynak traces the general shift within Christianity from a suspicious hostility of

democracy to an exalted view by way of a changing understanding of human dignity

45 Robert P. Kraynak, Christian Faith and Modern Democracy: God and Politics in the Fallen World, (Notre Dame: University of Notre Dame, 2002), 149.

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constricted from its original spiritual and intellectual conception to a primarily political

one, a transition manifested through his survey of three distinct views of the Imago Dei

which have emerged over the course of Christian history. As he has argued, Christianity

may be said to make the loftiest claims on behalf of human dignity, surpassing those of

all the great philosophies and religions of the world.46 At the root of Christianity’s

seismic shift in realized reverence for human life is the doctrine of the Incarnation: the

confessed belief that God became man in the divine person of Jesus Christ. In the spirit

of this revelation, Christianity promotes charity towards every human individual, the

humble no less than the exalted, as God shows no partiality nor is a respecter of persons

(2 Chron 19:7, Acts 10:34-35, Rom 2:11), and has demonstrated His boundless love for

all by scandalously condescending to become a “Son of Man”, restoring the created

image by means of the Uncreated Image’s Incarnation. But while such lofty claims on

behalf of human dignity are undeniable, Kraynak points out that “the precise meaning of

those claims as well as their implications for politics are not always clear; understanding

them requires theological interpretation and practical judgment.”47 Though the Christian

view of human dignity in the modern world is most often understood in terms of the

“rights” of the human person to recognition, respect, and suitable standards of material

well-being, Kraynak reminds the reader that this interpretation, linked as it is with

democratic implications emphasizing autonomous rights over and above duties as

understood within a hierarchical order of being, is a fairly new interpretation, and should

be recognized as the decidedly modern understanding that it is, having much to learn

46 Robert P. Kraynak, “Made in the Image of God: The Christian View of Human Dignity and Political Order”, In Defense of Human Dignity: Essays for Our Times, (Notre Dame: University of Notre Dame, 2003), 81. 47 Ibid.

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from ancient (patristic and medieval) understandings. Therefore it will be helpful to

overview the three distinct stages of the Imago Dei doctrine in order to establish “human

dignity” in a proper foundational perspective, and to determine whether its dominant

modern interpretation is indeed in faithful harmony with its original source within Judeo-

Christian revelation and tradition.

1) The Biblical Imago Dei

The claim that humans are made in the image of God – the Imago Dei – is the Biblical and Christian charter of human dignity which gives them an exalted rank above the plants and animals but a little lower than the angels or God. One of the challenges of the Bible is to figure out what constitutes the divine image in man.48 In seeking to discover what constitutes the divine image in man, a survey of

Scriptural references to man as created in God’s Image reveals a surprisingly scant

number, in addition to an absence of explicit precision in the texts that do reference it.

Kraynak draws the conclusion that, “the Bible avoids equating human dignity with any

particular traits in order to teach people that it is not a set of attributes that confers human

dignity.”49 There are only three references in the whole Hebrew Bible (excluding those

in the books of Wisdom and Ecclesiastes which will be addressed below), those three

being found in the book of Genesis. The first and most commonly referenced is of course

that in the Creation story itself (Gen. 1:26-27); the second draws a parallel between

God’s creation and Adam’s procreation: “This is the book of the generation of Adam.

When God created man, he made him in the likeness of God. Male and female he created

them, and he blessed them and named them Man when they were created. When Adam

had lived a hundred and thirty years, he became the father of a son in his own likeness,

48 Robert P. Kraynak, “Human Dignity and the Mystery of the Human Soul”, Human Dignity and Bioethics: Essays Commissioned by the President’s Council on Bioethics, 74. 49 Ibid.

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after his image, and named him Seth” (Gen 5:1-3). The third passage in Genesis occurs

after the waters of the Flood have receded. God blesses Noah and his family, as Kraynak

points out, using the language of the creation account to teach the value of human life:

“Be fruitful and multiply, and fill the earth. The fear and the dread of you shall be upon

every beast of the earth… For your lifeblood I will surely require a reckoning…Whoever

sheds the blood of man, by man shall his blood be shed; for God made man in his own

image” (Gen. 9:5-7). It is not insignificant for the present purpose that one of only three

references to the Imago Dei in the totality of the Hebrew Scriptures is conjoined with a

capital prohibition against violating that image by the act of murder. As Kraynak

emphasizes, these three foundational references are the primary basis for understanding

the biblical conception of human dignity, revealing it within the context of God having

created the natural world as a hierarchy of being, with the human species occupying the

highest place. But this exalted status conferred upon imaged man is nonetheless capable

of suffering a setback, so to speak, a loss of that original dignity which Kraynak identifies

as the created capacity for immortality forfeited by man’s original hereditary act of

disobedience to the command of God in the personal sin of Adam. Regarding this

thematic though elusive development of Scripture’s fundamental account of the Imago

Dei, Kraynak writes,

The challenge of Genesis is that it offers a glimpse into human dignity by referring to the divine image without precisely defining it. Dignity includes man’s superior rank in the created hierarchy; and it confers special worth to human life and procreation, although the lifeblood and procreation of other animals also receive certain blessings (as if they too shared in the divine image to some extent). If this is true however, what remains of the special dignity of man? The only answer that makes sense to me is that the lifeblood and procreation which man shares with other animals have a deeper meaning for the human species: they are pale reflections of something man alone possessed before the Fall, namely, immortal life. The implication is that immortality is the lost image of God in man – a suggestion supported by the account of the Fall, which is primarily about the loss of immortality, as well as by the longevity of Adam and the early patriarchs, who lived

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up to 900 years, as a kind of afterglow of immortality that God finally ended by setting a limit to human life at 120 years (Gen. 6:3).50 [emphasis added]

Kraynak sees this interpretation supported and supplied with further insight into human

dignity in the books of Wisdom and Ecclesiasticus, which are included in most Christian

Bibles, though not in the Hebrew Bible. In particular he cites the following passage in

Wisdom 2:23-24 as that wherein is found the most explicit identification of the image of

God in man with the attribute of immortality or divine eternity: “For God created man for

incorruption, and made him in the image of His own eternity, but through the devil’s

envy, death entered the world.” The passage cited from Ecclesiasticus goes on to give a

more precise meaning to the Imago Dei. In addition to echoing Genesis in referring to

the dominion given to man over the earth, it describes that the Lord,

Endowed them with strength like his own, and made them in his own image…He made for them tongue and eyes; he gave them ears and a mind for thinking. He filled them with knowledge and understanding, and showed them good and evil. He set his eye upon their hearts to show them the majesty of his works. And they will praise his holy name, to proclaim the grandeur of his works. He bestowed knowledge upon them, and allotted to them the law of life. He established with them an eternal covenant, and showed them his judgments…And he said to them, “Beware of all unrighteousness.” And he gave commandment to each of them concerning his neighbor.” (Sir. 17:3-14)

Kraynak questions however whether any of these particular attributes are as

important as the simple fact of God’s election of man for special care, and the election of

Israel for an eternal covenant. He writes, “In this sense, the Imago Dei – as God’s

mysterious election of certain beings for divine favor – is the premise of the entire Old

Testament, which may explain why it appears prominently in Genesis up to the first

covenant (with Noah) and then drops out of sight.” 51 It is with the New Testament that

the original language of Genesis concerning the Imago Dei reappears, complete with a

50 Kraynak, “Human Dignity and the Mystery of the Human Soul”, 76. 51 Ibid, 78.

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more profound significance in its use. Preeminently the language of image is reserved to

Jesus Christ, who is called “the image (eikon) of the invisible God” (Col. 1:15), who

conditionally restores the partially lost created image in man. Kraynak summarizes,

“Christ combines in his person the image of God (immortality) and the likeness of fallen

men (mortality) and therefore is able to restore the lost image of God to man (to restore

lost immortality).”52 This understanding is reflected in St. Augustine’s writings as well,

Now we bear the image of the earthly man by the propagation of sin and death, which pass on us by ordinary generation; but we bear the image of the heavenly by the grace of pardon and life eternal, which regeneration confers upon us through the Mediator of God and men, the Man Christ Jesus. And He is the heavenly Man of Paul’s passage, because He came from heaven to be clothed with a body of earthly mortality, that He might clothe it with heavenly immortality.53

While there appears to some modern readers of Scripture an apparent

contradiction between the statements in the New Testament that require undemocratic

obedience to hierarchical authority – “Let every soul be subject to the governing

authorities” (Rom. 13:1); “Slaves, be obedient to your earthly masters” (Eph. 6:5-7) – and

other passages which speak of the spiritual dignity of all human beings – “There is

neither Jew nor Greek, slave nor freeman, male nor female, for you are all one in Christ”

(Gal. 3:28) – this is resolved by recognizing that human dignity in the Bible is both

universal and selective. This dual nature of dignity will be revisited and more fully

developed in the penultimate subsection of this chapter.

In completing the overview of this first stage of man’s understanding of the

Imago Dei, it is helpful to see its relation to later conceptions, which begin to put into

perspective the questions currently being raised in modern liberal democracies regarding

52 Ibid. 53 Augustine, The City of God, Book XIII, Chapter 23, p. 435.

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alleged violations of man’s inherent dignity with regard to capital punishment. We thus

conclude this first subsection with Kraynak’s observations of the stark divergence of the

Scriptural emphasis with that inherent in the contemporary political and egalitarian focus:

[The Scriptural] view of human dignity is essentially spiritual, focusing on man’s capacity to relate to God by obeying or disobeying His commands. It is not inherently democratic in a political sense, since it underlies God’s command to Moses to establish a theocracy and to Samuel to establish a kingship by anointing Saul and David as well as the commands of the New Testament to obey Caesar in the temporal realm. For Christians, it means that everyone has infinite worth as a creature of God with an immortal soul and an eternal destiny. And it means that human beings must be loved in relation to that eternal destiny, not simply as rational beings who are ends-in-themselves or bearers of rights. Since the biblical Imago Dei refers to something supernatural or mystical about every human being and is compatible with ‘divine election’ as well as with spiritual and political hierarchies, it does not necessarily entail democracy and human rights.54 [emphasis added]

2) The Imago Dei of the Church Fathers and Medieval Theologians

The second interpretation of the Imago Dei identified by Kraynak is that of the

early church fathers and medieval theologians. This interpretation builds upon the biblical

foundation, while incorporating Greek philosophical insights, in order to define further

the divine image as a distinct part of a hierarchical “great chain of being,” with man in

possession of a rational soul ordained in a preeminent manner to the reditus to God as the

source of his being.55 Kraynak writes,

In this scheme, man was described as a rational substance with an eternal destiny or as a composite of body and soul possessing intellect, free will, and passions that is innately directed (despite tendencies to sin) to the perfection of mind and character – that is to the moral, intellectual, and theological virtues. The dignity of man could thus be identified with a rational soul that was an image of God’s intellect and will, a view that gave man a high dignity in the universe…And within the human species, all persons could be seen as possessing a common human dignity because of their reason and free will; yet, they could also be ranked unequally according to a hierarchy of perfection or degrees of virtue.56

54 Kraynak, Christian Faith and Modern Democracy, 150. 55 Ibid, 79, 150. 56 Ibid, 79.

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Within this stage in the development of the doctrine of the Imago Dei, an increasing

sense of a “distinction of dignities” emerges that is often seemingly either difficult for the

postmodern mind to grasp, or regarded as undesirable if not untenable because of its

insinuated allowances of a perceived inegalitarian state of affairs. Indeed, Gregory of

Nyssa, an influential church father of the fourth century, developed a mystical theology

of spiritual perfection based upon Neo-platonic and Scriptural sources, attributing to man

the possession of a rational soul with intellect and free will that bestow upon him a “royal

dignity,” extending rational activities beyond mere acquisition of empirical knowledge or

technical skill. Summarizing this development of Gregory, Kraynak writes,

The mind moves by loving ascent toward God in mystical contemplation – transcending the senses and the passions in ascetical detachment from the world, driven by a passionate desire to know God that Gregory describes as a combination of Platonic eros and Christian agape, a longing for immortality through sacrificial love. While affirming the exalted status of every human being, Gregory’s view of rational and spiritual perfection leads to a ranking of souls according to their capacity for the highest states of mystical union – a doctrine of spiritual inequality.57 [emphasis added]

Like Gregory of Nyssa, Augustine also incorporated Neo-platonic and Christian ideas

into a metaphysical and theological doctrine of the hierarchy of being. Moving from the

revealed biblical name of God in Exodus as “I AM WHO AM,” or pure esse, God is

understood to have bequeathed existence to all created beings (ens) in varying degrees,

with rational man surpassing the vestiges of terrestrial creation beneath him in alone

possessing the potential to be a true image of the supreme revelation of God as Trinity.

In sum, Augustine holds that “there is a scale of value stretching from earthly to heavenly

realities, from the visible to the invisible; and the inequality of these goods makes

possible the existence of them all.”58 Kraynak comments, “What Augustine means is that

57 Ibid, 80. 58 Cf. Augustine, City of God, Book XI, Chapters 16, 23-26, pp. 360, 366-371.

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the creation of the universe by God is a reflection of His goodness, and a good creation

requires an ordered hierarchy of unequal parts – an order that is further differentiated

after the Fall by the distinction of the heavenly and earthly cities.”59

Like much of Christian theological development in other areas, St. Thomas

Aquinas gathered the balance of what had preceded him regarding this issue and

systematized it in a distilled manner exceedingly helpful in summarizing this stage of the

development of the doctrine of the Imago Dei. St. Thomas writes that man is “made to

God’s image, in so far as the image implies an intelligent being endowed with free-will

and self-movement.”60 Kraynak comments that, “while this description may sound like

the rational individual of Kantian liberalism who has dignity by virtue of his reason,

freedom, and power of self-determination, the Thomistic conception of man is not that of

an autonomous being whose rational will is an end-in-itself. For Thomas, reason has an

end beyond itself – the knowledge and love of God and of God’s creation.”61 Thomas

succinctly articulated a tripartite schema of the image of God in man:

Since man is said to be to the image of God by reason of his intellectual nature, he is the most perfectly like God according to that in which he can best imitate God in his intellectual nature. Now the intellectual nature imitates God chiefly in this, that God understands and loves Himself. Wherefore we see that the image of God is in man in three ways. First, inasmuch as man possesses a natural aptitude for understanding and loving God; and this aptitude consists in the very nature of the mind, which is common to all men. Secondly, inasmuch as man actually or habitually knows and loves God, though imperfectly; and this image consists in the conformity of grace. Thirdly, inasmuch as man knows and loves God perfectly; and this image consists in the likeness of glory. Wherefore on the words, The light of Thy countenance, O Lord, is signed upon us (Ps. iv. 7), the gloss distinguishes a threefold image, of creation, of re-creation, and of likeness. The first is found in all men, the second only in the just, the third only in the blessed.62 [emphasis added]

59 Kraynak, Christian Faith and Modern Democracy, 81. 60 Aquinas, STh, I-II, q. 1, Prologue. 61 Kraynak, Christian Faith and Modern Democracy, 81. 62 Aquinas, STh, I, q. 93, a. 4, corpus.

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Unlike subsequent accounts of the dignity of man transposed within a system of Kantian

ethical idealism, Thomas, as Augustine before him, sees reason and free will as capacities

inherently directed to knowing and loving God, not as a purely autonomous power that

merely reflects upon itself or legislates for itself, nor in terms of “IQ” degradedly focused

upon technical means while remaining indifferent to the highest end. The patristic and

Scholastic theologians viewed reason in Platonic and Aristotelian fashion, “as a kind of

eros or potentiality directed toward actuality that seeks unification with the First

Cause…dignity within the human species depends on one’s fullness of being as a rational

substance whose mind and soul are drawn upward to God.”63 Kraynak comments, “In

Thomas’s hierarchy, grace works together with free will, which means people are

responsible in part for enhancing or diminishing the image of God in themselves. This

has important consequences not only for salvation, but also for law and criminal

justice”64 [emphasis added]. While St. Thomas recognizes that with respect to the

inherently dignified nature of the murderer himself, the taking of his life is indeed an evil,

to the degree that he has committed grave acts of wickedness in self-violation of his own

dignity, “the slaying of a sinner becomes lawful in relation to the common good, which is

corrupted by sin.”65 Beyond even the lawful nature of the retributive act that deprives a

murderer of his life, St. Thomas sees such an act as well within the order of charity. Two

things are distinguished in the sinner, his nature, which he has from God, namely a

capacity for happiness, on the fellowship of which charity is based, and his guilt,

whereby he is opposed to God and is thus to be hated with respect to the act of

63 Kraynak, Christian Faith and Modern Democracy, 82-83. 64 Ibid. 65 Aquinas, STh, II-II, q. 64, a. 6.

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wickedness committed. On the micro level of individuals among one another, Thomas

acknowledges that, “hatred of a person’s evil is equivalent to love of his good. Hence

also this perfect hatred belongs to charity.”66 But on the macro level of the individual in

relation to the whole or the community of which he is a part, grave acts of wickedness,

which reveal a corrosive obstinacy in sin, involves charity with respect to the whole

which consequently supercedes in priority that of individuals. Thomas writes,

It is for this reason that both Divine and human laws command such like sinners to be put to death, because there is greater likelihood of their harming others than of their mending their ways. Nevertheless the judge puts this into effect, not out of hatred for the sinners, but out of the love of charity, by reason of which he prefers the public good to the life of the individual. Moreover the death inflicted by the judge profits the sinner, if he be converted, unto the expiation of his crime…67

To sum up the contribution of patristic and medieval theology to the doctrine of

the Imago Dei briefly here overviewed, it is seen that this second interpretation, like the

biblical one, is essentially spiritual as well, while adding a depth of insight into the

intellectual dimension of the rational human soul ordained to a supernatural destiny.

Kraynak distils this additional development while commenting upon the rationale for its

undemocratic allowances writing,

Everyone has a soul with intellect and free will that can gain or lose eternal life by knowing and loving God properly and that may be elevated by contemplating the rational order of God’s created universe. This conception of dignity points to a hierarchy of perfection in the spiritual realm and permits kingship and undemocratic regimes as prudential choices in the temporal realm because they are the best means for perfecting man’s sinful but rational nature.

An important contribution in this stage of the development, as noted above, is the

“distinction of dignities” made between that of man’s given nature and that aspect for

which he himself bears dignified responsibility. As will be developed more fully below,

66 Ibid, q. 25, a.6, ad 1. 67 Ibid, ad 2.

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it is this crucial distinction that philosophers and ethicists, grappling with modern moral

and bioethical challenges, have called upon, in addition to drafting new terminologies in

service of moral clarity on such issues.

3) The Modern Imago Dei

In the biblical view, dignity is hierarchical and comparative; in the modern, it is democratic and absolute. The Bible (both Old and New Testaments) promotes hierarchies because it understands reality in terms of the “image of God” which is a type of reflected glory – a reflection of something more perfect in something less perfect. Hence, dignity exists in degrees of perfection rather than in abstract equalities. The dignity or glory possessed by something made in the image of a more perfect being carries moral claims of deference, reciprocal obligation, and duty rather than equality, freedom and rights.68 [emphasis added]

As evident by what has been recounted above regarding the two premodern stages

or interpretations of the doctrine of the Imago Dei, there is much therein that does not

comport with modern democratic idealism and its preoccupation with egalitarian

concerns. Hence Kraynak identifies a distinct third interpretation of the Imago Dei

incorporated by some modern theologians, which is primarily a political versus spiritual

conception of human dignity, equating the divine image in man with being a “human

person.” As noted above, Kraynak’s thesis is that the influence of Kantian ethical

idealism is the single most determinative factor in this shift within Christian priorities and

concerns, and ultimately of the very conception of the nature of human dignity. It was

Kant who emphasized in his second formulation of the categorical imperative the

articulation of human beings as “persons” rather than “things,” that they must be treated

as ends-in-themselves rather than as means to be arbitrarily used for another’s pleasure or

68 Kraynak, Christian Faith and Modern Democracy, 60.

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profit.69 And it was also Kant who located infinite dignity or intrinsic absolute worth in

human persons not because they possessed immortal souls, but because they can

transcend the determinism of Nature and enter an intangible realm of autonomous

freedom by the exercise of their rational wills. Dignity for Kant is understood precisely

in terms of the one in possession of it having utter independence from any general human

inclination, including that of happiness, “a rational being who obeys no law except what

he at the same time enacts for himself.”70 In addition, Kant, in so holding that persons

possess inalienable human rights, concluded that those rights demanded recognition in a

legal and political order, “the one and only legitimate constitution, namely, that of a pure

republic”71 – meaning a representative democracy that protects human rights in the name

of the people who “themselves are the sovereign.”72 Kraynak comments,

This conception of the human person has given birth to the most influential philosophies of freedom in the modern world – to Kantian liberalism, Hegelianism, phenomenology, existentialism, and the various neo-Kantian theories of justice that dominate liberalism today. Despite their differences, all accept the Kantian distinction between Nature and Freedom and locate the dignity of the person in the ability to create a human world outside of biological and physical nature through assertions of the will; and nearly all draw the political inference that the dignity of the human personality justifies inviolable human rights. In one form or another, this conception has been incorporated into Christian theology and transformed it dramatically.73

This influence of Kantian idealism is openly acknowledged within some Christian circles,

while in others the taint of the Enlightenment Kant carries, as well as the incompatibility

of his conception of the person as an autonomous self with revelation, is cause for

embarrassment and attempted distancing. But nevertheless Kraynak sees the ethical 69 Immanuel Kant, Grounding for the Metaphysics of Morals, trans. James W. Ellington (Indianapolis: Hackett, 1993), §428. 70 Ibid, §434. 71 Immanuel Kant, The Metaphysical Elements of Justice, trans. John Ladd (New York: Bobbs-Merrill, 1965), §340. 72 Ibid, §341. 73 Kraynak, Christian Faith and Modern Democracy, 152.

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idealism of Kant as widely accepted and the most important factor in developing a

conception of democratic human rights so ubiquitous that it has affected, in the way of a

reduction, much of Christianity’s own understanding of human dignity.

Kraynak, like Sr. Helen Prejean whose views will be addressed below,

acknowledges that Christianity’s history reveals a deep resistance to the modern

conception of human rights. But unlike Sr. Helen, Kraynak forwards numerous and

profound reasons as to why this was so:

1) Christianity places duties to God and duties to one’s neighbor before individual rights and cannot easily accept the proposition that people have the right to pursue happiness as they see fit, especially if that right leads to societies that are indifferent to God.

2) Christianity’s foundation on divine revelation implies a duty to accept transcendent truth as well as authoritative pronouncements about truth by a hierarchical church rather than to accept the dictates of individual conscience wherever they might lead.

3) The Christian notion of original sin implies distrust of weak and fallible human beings to use rights properly; it instills a keen sense of how freedom can go awry and ultimately must view political freedom as a conditional rather than an absolute good.

4) Christianity puts the common good above the rights of individuals, and its emphasis on the family and man’s social nature conflicts with the individualism and privacy of rights.

5) The Christian teaching about charity – whose essence is sacrificial love – makes the whole notion of rights seem selfish, as if the world owes something to me when I declare, “I have my rights!”74

Kraynak concludes this summation of reasons for why the language of human rights has

so late achieved some acceptance within Christianity by pointing out that, “Ultimately, of

course, Christians cannot accept the premise of human autonomy or the natural freedom

of the autonomous self that underlies most doctrines of rights.”75

74 Ibid, 153. 75 Ibid.

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The two most significant developments in modern Christianity that Kraynak

highlights in his work, the end of the prudential approach to politics and the new

emphasis on the human person as primarily a “bearer of inherent rights,” are both

identified by him as the result of an incorporation of the ethical idealism of Kant into

Christian theology. In place of a “politics of prudence,” a phrase borrowed by Kraynak

from Russell Kirk, is substituted what Kant himself phrases a “politics of moral

imperatives,” which modern Christians are prone to see as a direct deduction from this

new pseudo-religious concept of human dignity. And in place of the metaphysical

understanding of the person as developed by medieval Scholasticism is substituted the

political emphasis on imperatives associated with the “moral personality” of modern

Kantian culture. The metaphysical notion of “person,” articulated in the definition of

Boethius as “an individual substance of a rational nature,” has given way in modern times

to referring to “a human being with a duty to forge his or her own identity or moral

personality by an assertion of the will.”76 Though previously a general metaphysical term

indicating separate existence, it was applied almost exclusively to God in the articulation

of the doctrine of the Trinity, wherein God is confessed through what He has revealed of

Himself as three persons in one essence-existence, distinct in relations of origin while one

and eternal in Being. Increasingly however, with the influence of Kant, “person” has

developed to mean primarily a rational and free agent who possesses inherent dignity and

rights, a transition “from the metaphysical person to the moral personality.” Kraynak

comments,

Personality in this new sense means moral agency through the will – the creation of a moral identity by rising above biological and physical processes through conscious willing. In reference to the self, personality is the self-determination that gives unity to

76 Kraynak, Christian Faith and Modern Democracy, 154.

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the whole moral agent – either through the rational will, as Kant himself argued, or through the irrational will, as various neo-Kantian and existentialist philosophers have argued. In relation to others, personality is the unified self that is capable of finding fulfillment in social activity, especially in freely giving one’s self to others. While some theologians (especially Catholic neo-Thomists) see a fairly smooth transition from the metaphysical person to the moral personality – arguing that “person” has always referred not only to a type of “substance” but also to a type of “relation” between beings – I think that the equation of moral relations with asserting one’s rights and respecting the rights of others is a new dimension. By making a separate existence something that is willed and claimed as a right that must be recognized by others, personhood moves outside the sphere of Thomism and even of Christian charity into the realm of Kantian liberalism. Indeed, the emphasis on the rights and dignity of the person in the Kantian sense has become so important that much of modern theology has turned its focus away from metaphysics (how things exist) toward morality and politics (social ethics and social justice).77 [emphasis added]

This shift in emphasis within modern theology has influenced in particular the debate

within the Christian community regarding capital punishment, although neo-Kantian

death penalty abolitionists part ways with Kant’s understanding of a retributive

imperative in the case of murderers.78

Because Kraynak sees Kant’s influence on modern Christianity to be so deep and

pervasive, he distinguishes three great periods of Christian theology: ( 1 ) the Platonic or

Neoplatonic Christianity of the early church fathers; ( 2 ) the Aristotelian Christianity of

medieval or Scholastic theology; and ( 3 ) the Kantian Christianity of the modern age.

Kraynak suggests that if this generalization is correct, the key to modern theology is to

“see its various developments as synthetic efforts – as new combinations of metaphysical

realism grounded in the traditional theologies of St. Augustine or St. Thomas and the

ethical idealism derived from Kant’s theory of moral personality and philosophy of

freedom.”79 While there are many examples of such syntheses in various faith traditions,

within Catholicism it is located in “personalism,” the dominant school of Catholic 77 Ibid, 154-155. 78 “If, however, he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice.” Kant, The Metaphysical Elements of Justice, §333. 79 Kraynak, Christian Faith and Modern Democracy, 155.

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theology developed primarily by Jacques Maritain, and found in the documents of

Vatican II as well as the encyclicals of Popes John XXIII, Paul VI, and John Paul II.

Catholic personalism is a complex idea, and while a detailed overview of its development

and intricacies is beyond the scope of this present work, Kraynak’s assertion that at its

core can be found a synthesis of Thomas and Kant, along with his distinction of a valid

versus an invalid synthesis thereof, can assist in clarifying the philosophic divide within

personalism itself, separating the prudentialist and reductionist interpretations of the

Church’s shift in language with regard to capital punishment in particular. Before doing

so, it will be helpful to bring in some of the terminology and reasoning currently being

drafted and utilized by bioethicists as they too wrestle with how to defend and navigate

the complex and at times murky waters of “human dignity.”

4) Distinction of Dignities In comparing the statement of St. Thomas that “a man who sins deviates from the

rational order, and so loses his human dignity [dignitate humana]…To that extent then,

he lapses into the subjection of the beasts” with that of Pope John Paul II, “Not even a

murderer loses his personal dignity [dignitate],” Gilbert Meilaender notes the striking

nature of “the seeming divergence between these two important and influential

statements within the same (albeit long and extended) tradition of thought.”80 He

comments,

Aquinas seems to think that the murderer, by turning against what reason requires of us, becomes more beast than man – losing the dignity that characterizes human beings, the rational species. John Paul II, in a context discussing the death penalty in general and Cain’s murder of Abel in particular, does not seem to think of “dignity” as something that can be lost by human beings, even when they act in ways that fall far short of the excellences that mark human nature. The tension between these two notions of human

80 Gilbert Meilaender, “Human Dignity and Public Bioethics,” The New Atlantis: A Journal of Technology & Society, Summer 2007, 33.

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dignity is evident, and I suspect that any time we think seriously about a range of issues in bioethics we are likely to find ourselves caught up in just this tension, looking for ways to distinguish one meaning of the term from another, or looking for other terms to mark the distinction.81 [emphasis added]

Because of this tension and the common lack of clarification of meaning or

distinction among invocations of the term “dignity,” it has been dismissed by some as “a

useless concept,” while even its defenders acknowledge it can be a “problematic

notion”82 within contemporary discussions. Though specifically addressing the term’s

use in bioethical matters, Meilaender’s statement that while increased clarity regarding

the content, so to speak, of “dignity” is desirable, his suspicion that “it is a ‘defect’ that is

inherent in discourse about the kinds of question with which bioethics deals”83 is also

applicable to the prudential realms wherein the Church and society must grapple with the

practical morality of capital punishment.

Meilaender begins his essay with a distinction between two different senses of

human dignity emphasized in a 2005 report put out by the President’s Council on

Bioethics. The report notes that the language of dignity might be used to mark either a

“floor,” a kind of respect and care beneath which our treatment of any human being

should never fall – or it might be used to mark a “height” of human excellence, those

qualities that distinguish some from others. Meilaender points out however that it is not

making the abstract distinction between non-comparative and comparative senses of

dignity that is the greater challenge, but rather the attempt to “do justice to each of them

simultaneously,” particularly in the more difficult scenarios faced in the murky moral

realms of fallen humanity in the modern era. He suggests that what is necessary is to

81 Ibid. 82 Kass, “Defending Human Dignity,” 297. 83 Meilaender, “Human Dignity and Public Bioethics,” 34.

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determine a standpoint from which to see the whole truth about any and every human life,

to bring the “aristocratic” comparative dignity in proper relation with the “democratic”

non-comparative dignity.

Though perhaps somewhat of a simplification, it might be helpful to note that

while both of these senses are represented in the first two interpretations of the Imago Dei

overviewed above – namely the Judeo-Christian creation account with its non-

comparative implications of equidistance from and equal worth before God, and the

patristic and Scholastic contribution with their insight of human potency and comparative

degrees of perfection or reflection of the divine image – the modern interpretation of the

Imago Dei can be seen as moving in the direction of letting “the comparative notion of

dignity be transformed when brought into contact with the non-comparative and

egalitarian.”84 Meilaender quotes Leon Kass as representative of the move in the

opposite direction,

“One can, of course,” Kass writes, “seek to democratize the principle [of dignity]… Yet on further examination this universal attribution of dignity to human beings pays tribute more to human potentiality, to the possibilities for human excellence. Full dignity, or dignity properly so-called, would depend on the realization of these possibilities.” This must lead in the end to some kind of distinction between basic and full humanity, with dignity accorded chiefly to the latter, to a life in which the characteristic human excellences are developed and displayed.85

While admitting that Kass’s statement captures something “almost all of us

believe to be true”, he also sees, “at least in certain contexts, something offensive to our

ears about this aristocratic way of depicting human dignity.” Meilaender thus concludes

that, “we can grant and make use of comparative notions of dignity as long as our use is

84 Ibid, 40. 85 Ibid, 39; In “Defending Human Dignity,” Kass introduces the even more explicit terminology of distinction of “the basic dignity of human being” and “the full dignity of being (actively) human, of human flourishing.”

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shaped and transformed by our commitment to a non-comparative and equal dignity,”

while also admitting the critical point that “our society’s commitment to equal human

dignity is best and most safely grounded in religious belief.”86 But while Kass

acknowledges that “on anyone’s account, the idea of “dignity” conveys a special standing

for the beings that possess or display it,” he also gives examples of persons whose dignity

is decidedly, and oftentimes unexpectedly displayed from within, not conferred from

without, contrasted with a cogent cinematic portrayal of a person whose debasement is

inherent and self-induced, not stipulated or externally attributed.87 Further establishing

his point he writes,

Although we often do contrast the virtue of one person with the vice of another – as I have just done – such judgments of excellence and its opposite are, in fact, only accidentally comparative. When we recognize the superior dignity of Mother Teresa we do so not by comparing her against Saddam Hussein or even against merely moderately virtuous human beings. We judge not that she is better than others (as we do in competitive sports) – though, in fact, it happens that she is – but rather that she measures up to and even exceeds a high standard of excellent character and dignified conduct. We are not comparing individuals against each other; we are measuring them against a standard of goodness. Proof: courageous or generous deeds would still be courageous or generous deeds – equally dignified and equally honorable – even if everyone practiced them regularly. Thus, the seemingly inegalitarian nature of dignity grounded in excellence of character is not in its essence undemocratic, even if ethical virtue is not, in fact, displayed equally by everyone.88 [emphasis added]

86 Ibid, 43. 87 “Opposite to this example of dignity triumphing over degradation is the self-inflicted dehumanization of Herr Professor Immanuel Rath in the classic German movie, The Blue Angel (1930). A strict, upright, gymnasium English teacher, Professor Rath goes to the local night club to reprimand his wayward students who have been attracted there by the siren singer, Lola Lola, and to scold her for corrupting the young. But on entering her presence, Rath is smitten by Lola’s charms, and he returns the next night filled with desires of his own. When he gallantly “defends her honor” against a brutish sea captain seeking sexual favors, Lola, touched by his chivalry on her behalf, invites him to spend the night. Exposed in school the next morning by his students, the honorable professor declares his intention to marry Lola Lola, for which decision he is promptly dismissed from his position. After laughing uncontrollably at his proposal, Lola Lola unaccountably accepts him; yet at the wedding feast, in front of all the guests, Rath is made to cock-a-doodle-do like a rooster in love. The married professor now joins the traveling show, first as Lola’s servant, later as a performing clown. Eventually, when the traveling entertainers return to his hometown, Professor Rath is made co-star of the vaudeville show. With her latest lover at her side, Lola forces Rath to play a (cuckolded) crowing rooster while eggs are cracked upon his skull before a full house of roaring spectators, including his former students and neighbors. It is a scene of human abasement that is unbearable to watch.” Kass, “Defending Human Dignity”, 307-308. 88 Ibid, 310.

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Kass’s point is a helpful one in countering the politicization of dignity prevalent in the

predominate modern interpretations of the Imago Dei, and for restoring a proper relation

between both the non-comparative and comparative dimensions with one another,

ordering each within the created whole wherein human respect and human accountability

both have their rightful expression. It is again worth noting that these two aspects or

tensions of the vertical and horizontal dimensions of human dignity are both represented

in the Church’s classical tradition of the doctrine of the Imago Dei, though it is indeed the

case that the non-comparative dimension has developed a deeper resonance in modern

times not entirely without merit. It is not its stress on the non-comparative notion itself

that takes the modern interpretation off course, but that its emphasis on “rights” shows it

to be rooted more in Kantian autonomy89 than divine revelation, radically deemphasizing

and even deconstructing the comparative notion with its transcendent implications of

moral responsibility and accountability within the created order.90

5) “Kant-in-a-box” As introduced in a previous subsection, Catholic personalism can be understood at

its core as being a synthesis of Thomas and Kant. Such a synthesis combines the natural

law doctrine of traditional Thomism, where man is understood to be a rational and social

animal imbued with transcendent longings for God, with the Kantian theoretical emphasis

89 On Kant’s influence and neo-Kantian derivations therefrom Kass writes, “there is something austerely dignified in the Kantian refusal to confuse reason with rationalization, duty with inclination, and the right and the good with happiness (pleasure). Whatever persists of a non-utilitarian ethic in contemporary academic bioethics descends largely from this principled moralistic view. Never mind that, for most people, human “autonomy” no longer means living under the universalizable law that self-legislating reason prescribes for itself, but has come to mean “choosing for yourself, whatever you choose,” or even “asserting yourself authentically, reason be damned.” 90 “In the name of freedom, there has to be a correlation between rights and duties, by which every person is called to assume responsibility for his or her choices, made as a consequence of entering into relations with others.” Cf. Pope Benedict XVI, Address to the United Nations, April 18, 2008.

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of moral personality, where man is understood as an acting and willing agent holding

claim to a host of social, economic, and political rights. In so doing, Catholic social

teaching has retained the doctrine of natural law while redefining its content. As noted

by Kraynak, “instead of emphasizing virtue and constitutional monarchy, as traditional

Thomism did, it now teaches “the rights and dignity of the human person” in a liberal or

constitutional democracy.”91 This shift in tone was ratified in the Church’s Second

Vatican Council, as can be seen in the language of its prominent documents. Kraynak

provides a chronicle of some of the key appearances of the relatively new incorporation

of this language:

“The Declaration on Religious Freedom” (Dignitatis Humanae) states that the Church is now embracing the principles of religious liberty and constitutional democracy in accordance with the growing “sense of the dignity of the human person [that] has been impressing itself… on the consciousness of contemporary man.” (par. 1). The declaration says that “the right to religious freedom has its foundation in the very dignity of the human person” (par 2) and “the protection and promotion of the inviolable rights of man ranks among the essential duties of governments” (par. 6, 13). In another important document, “The Constitution of the Church in the Modern World” (Gaudium et Spes), the Council also speaks of the “growing awareness of the exalted dignity proper to the human person, since he stands above all things, and his rights and duties are universal and inviolable” (par. 26) At the same time that it affirms the Kantian-like rights of persons in a constitutional democracy, the document makes it clear that the human person is a creature made in the image of God whose “innermost nature is a social being” and whose destiny as a spiritual being finds its true fulfillment in Christ (par. 12, 22-23, 41, 75). In similar language, the new Catechism of the Catholic Church says that “the human person…is and ought to be the principle, the subject, and the end of all social institutions” (par. 1881) and “respect for the human person entails respect for the rights that flow from his dignity as a creature” (par. 1930). Even Christian charity is redefined in terms of human rights: “Charity is the greatest social commandment. It respects others and their rights. It requires the practice of justice…[and] inspires a life of “self-giving” (par. 1889). In these statements, one can see the pervasive influence of Catholic personalism and its new combination of Thomistic metaphysics and Kantian rights.92

Though there is much that could be developed regarding this combination beyond the

scope of the present focus, what is most important to address is the high degree of

91 Kraynak, Christian Faith and Modern Democracy, 156. 92 Ibid, 156-157.

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common ground that both Catholics and Protestants have found with certain features of

Kantian liberalism. But as noted by Kraynak, the crucial difference is that most secular

philosophers reject the proposition that there is any ultimate foundation for or proper

telos of human dignity, embracing rather a radical autonomy of “the unencumbered self,”

while Christian tradition had previously and exclusively located human dignity in the

premodern foundational doctrine of the transpolitical Imago Dei. The difficulty arises in

the Kantian twist now incorporated into the third stage or interpretation of this doctrine,

namely “the ethical imperative to affirm the rights and dignity of the self-defining

person”93 [emphasis added].

Having thus far sketched the tripartite development of the doctrine of the Imago

Dei, the question then presents itself of what is to be thought about the opening of

Christianity to democracy and human rights as it is now seen in its culmination in a new

theological paradigm, and particularly as it relates to the question of capital punishment’s

relation to the demands of human dignity. As Kraynak frames the question, “Is it a valid

synthesis of old and new ideas and a wise move? Or is it a liberal ‘sell-out,’ a surrender

of Christian faith to modern liberalism?”94 Though such questions cannot at present be

addressed with the comprehensive depth they invite, noted as they are by Kraynak as

involving careful and difficult judgments with much at stake in the process, he offers a

helpful starting point from which to consider the challenges faced. He writes,

As I see it, the validity of the new synthesis depends entirely on one issue: the ability to control Kant, to keep ‘Kant-in-a-box,’ as it were. For pure Kantianism is incompatible with Christianity: The Kantian person, taken by itself, is an autonomous being who lives solely by self-imposed laws, which means it denies the real existence of divine law or of natural law sanctioned by God, and it denies man’s supernatural destiny. The implication is that only a qualified acceptance of Kant could be legitimate for Christians; and the

93 Ibid, 159. 94 Ibid.

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conditions of acceptance must be clearly spelled out. If a given Christian theologian is careful to keep Kant subordinated to Augustine and Thomas – that is, if the theologian understands the freedom of the person to serve higher ends than autonomous reason and does not treat the human personality as an end-in-itself – then the theologian has created a valid synthesis in which God’s law remains superior to human personality. But if a Kantian conception of autonomy prevails, then God has become the servant of modern humanism and the synthesis is invalid.95

Kraynak concludes by offering two examples of valid and invalid syntheses, the former

as evinced within the personalism developed by John Paul II, and the latter that of

Reinhold Niebuhr. For present purposes that of John Paul II will be briefly overviewed

with an eye towards understanding the role his personalism has played in his prudential

judgments regarding capital punishment as reflected in Evangelium Vitae and subsequent

statements, as well as the changes incorporated thereafter in the 1997 edition of The

Catechism of the Catholic Church.

The theology of John Paul II incorporates traditional Thomism – reflected in his

natural law teachings on moral virtue and sexual ethics as well as in his statements and

writings consistently opposing abortion, contraception, and homosexuality – with

important aspects of the modern philosophy of freedom. The latter can be recognized in

the influence of the phenomenology of Max Scheler and elements of Kantian ethics.

From these two schools of thought, traditional and modern, “the pope has formulated the

“dignity of the human person” as the leading principle of the Church’s social teaching.”96

But unlike competing and outwardly similar syntheses, for John Paul II, the dignity of the

person is “first and foremost a spiritual view of man, a being made in the image of God

with an eternal destiny and a capacity for self-giving love, as well as a rational and social

being,” although his “personalistic principle” also includes “the conception of man as an

95 Ibid, 159-160. 96 Ibid, 160.

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active agent who possesses inalienable rights, such as freedom of conscience and other

political and economic rights.”97 As noted by Kraynak, given the undoubtedly synthetic

nature of the pope’s thought, the critical question is again which element of the synthesis

predominates.

Kraynak locates the clearest answer in the encyclical The Splendor of Truth

(1993). In it, the pope emphatically describes the true meaning of human freedom as a

conditional good:

Freedom is not an end-in-itself but must serve the truth about God and the truth about the dignity of man… Indeed, the pope does not hesitate to say that “democracy…is a means and not an end; its ‘moral’ value is not automatic, but depends on conformity to the moral law…[and] on the morality of the ends which it pursues.” From these statements, one can see that the pope’s brand of Catholic “personalism” is a combination of Thomas and Kant, with the Thomistic elements predominating. 98 [emphasis added]

The difficulty with this synthesis, judged by Kraynak as “not inherently wrong,” is that

its validity depends on the precise formula for putting the different elements together.

Such precision however is a difficult and subtle business, requiring careful qualifications

which unfortunately are not necessarily attended to nor pursued in their full implications

with respect to the preceding tradition in the common reception of the Church’s

magisterial teaching documents. It requires an understanding of the so called “rights of

the human person” as primarily and definitively directed to higher ends such as virtue,

the common good, the duty to protect the weak and the innocent, and the supernatural

destiny of man. Apart from this overarching context so alien to the secular neo-Kantian

understanding of rights, a context alone within which “rights talk” may be authentically

incorporated into the Church’s tradition, rights as ends-in-themselves “can then be used

97 Ibid, 160-161. 98 Ibid, 161-162.

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to subvert legitimate authority as well as to oppose tyranny, disguising themselves as

neutral freedom of choice about the good life while actually imposing a specific way of

life slanted toward secularism or one-dimensional materialism or moral depravity.”99

[emphasis added]

John Paul II himself recognized this danger, addressing it within Evangelium

Vitae, and highlighted by Russell Hittinger in a symposium on the document:

“Paradoxically…[what were once crimes now] assume the nature of ‘rights,’ to the point that the State is called upon to give them legal recognition…[it is ] sinister [that states are] departing from the basic principles of their Constitutions.” For, by recognizing as moral rights the right to kill the weak and infirm, the “entire culture of human rights” is threatened. “It is a threat capable, in the end, of jeopardizing the very meaning of democratic coexistence.”100

Hittinger goes on to make a point echoing that of Kraynak regarding the Church’s

seemingly inevitable adoption of contemporary language and opening to modern liberal

democracies, and yet noting how its original evaluation of constitutional democracies has

come full circle. He writes,

The causes of this “surprising contradiction” are complicated. One of the causes, however, demands immediate and ongoing attention. For three decades, the Vatican proceeded as though the language of human or natural rights was unproblematic. Maritain taught an entire generation of prelates and theologians that there could be a practical agreement about human rights even in the absence of a common philosophical framework – not to mention the absence of stable systems of positive law. Perhaps this idea was plausible after the trauma of World War II. In times of crisis, there is often an abundance of good will and common aspiration…Even where the political and philosophical language is not morally corrupted, it is very difficult to integrate the abstract concept of human rights with the concrete requirements of constitutional order and the rule of law…Having taken two centuries to set aside the older model of political Christendom, and having only recently passed through a kind of honeymoon with the secular constitutional democracies, Rome is now prepared to take a more realistic measure of the situation.101 [emphasis added]

99 Ibid, 164. 100 Russell Hittinger, “The Gospel of Life: A Symposium,” First Things, October 1995. 101 Ibid.

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Though the emphasis focused upon above is broader than the particular matter presently

being addressed, it supports Kraynak’s questioning of whether the strategy of

incorporating the Kantian theory of rights and dignity into Christian theology is an

ultimately wise or necessarily prudential move. We shall close this section with

Kraynak’s summation of why he believes such an incorporation to be problematic:

Even when [the Kantian theory of rights and dignity] is carefully qualified by responsible theologians or by the magisterium of the Catholic Church, it has a tendency to get out of control – to be misunderstood by people who are constantly bombarded by ‘secular liberalism’ as opposed to ‘Christian liberalism’ and who easily forget that human dignity does not lie in autonomy or personal identity but in the possession of an immortal soul with an eternal destiny that permits only conditional notions of freedom and rights. For political freedom to be true and authentically Christian, it must be controlled freedom – freedom that is guided and restrained by a host of institutions so that the characters of free persons are properly formed to choose wisely and well.102 [emphasis added]

102 Kraynak, Christian Faith and Modern Democracy, 164.

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III. The Convergence of a Blood Soaked Century, the Personalistic Norm of John Paul II, and Sr. Helen Prejean

It is a telling moment in the opening pages of Sr. Helen Prejean’s first major

abolitionist work, Dead Man Walking, that recalls the message of sociologist Sr. Marie

Augusta Neal, “that caused the most radical shift in my perspective. “The Gospels record

that Jesus preached good news to the poor,” she said, “and an essential part of that good

news was that they were to be poor no longer.” Which meant they were not to meekly

accept their poverty and suffering as God’s will, but instead, struggle to obtain the

necessities of life which were rightfully theirs.”103 (emphasis added) So much for

“blessed are the meek, for they shall inherit the earth” (Matt 5:7).104 No less telling are

words we read in her second work, The Death of Innocents, that recall how, “Belief in

eternal life and saving one’s soul were paramount in church teaching in those days…”105

[emphasis added]. This perceived ‘previous’ ecclesial focus, which we can only assume

to be considered by the author as an outdated spiritual narcissism, is approvingly

acknowledged by her to have increasingly faded with the emphatic rise of “global efforts

for social justice and peace,” with the attendant “dramatic evolution in global attitudes

toward the death penalty,” trends which necessarily influenced the Church until “Pope

John XXIII and the Second Vatican Council ushered in a new consciousness…”106 This

is troubling language for many reasons, some of which have been addressed above in the

103 Prejean, Dead Man Walking, 6. 104 It is noteworthy that when the crowds sought for Jesus after the multiplication of the loaves and fishes that physically satiated them, He emphasized the true end of His miraculous feeding: Jesus answered them, “Truly, truly, I say to you, you seek me, not because you saw signs but because you ate your fill the loaves. Do not labor for the food which perishes, but for the food which endures to eternal life, which the Son of Man will give to you; for on him has God the Father set his seal.” Then they said to him, “What must we do, to be doing the works of God?” Jesus answered them, “This is the work of God, that you believe in him whom he has sent.” (Jn 6: 26-29) 105 Prejean, The Death of Innocents, 119. 106 Ibid, 121-123.

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analysis of the well intentioned – but reduction nonetheless – transposition of the

concept of human dignity within modern liberal democracies. But it is not surprising

given a century that witnessed unparalleled extremes of violence and cruelty on such a

massive scale, to which the secular as well as believing world responded by pushing to

the farthest opposed extreme. Remarking on this effect of “the bloodiest century,” Leon

Kass writes,

The rise to prominence of the idea of “human dignity” in post-World-War-II Europe, expressed in the laws of many nations and especially in the United Nations’ Universal Declaration of Human Rights was surely intended to ensure that no human beings should ever again be so abused, degraded, and dehumanized – and, of course, annihilated. But a more robust notion of human dignity is needed…107 We can see this countering instinct reflected in Aristotle’s use of the image of a

warped stick being bent in the opposite direction as an illustration of aiming for the moral

mean. In formulating an account of virtue in the Nicomachean Ethics he writes, “We

must conclude that virtue aims at the median. I am referring to moral virtue: for it is

moral virtue that is concerned with emotions and actions, and it is in emotions and

actions that excess, deficiency, and the median are found.”108 Despite what “social

justice” proponents109 would have earnest but deficiently formed activists believe, justice

is not special interest solicitousness for the poor and unfortunate,110 but a moral virtue

perfective of the appetitive or passionate part of the soul by directing it to the good as

107 Kass, “Defending Human Dignity,” 301. 108 Aristotle, Nicomachean Ethics, Book II, 6, 1106b, 15. 109 Even an elected president who has taught constitutional law. The remarks of Barack Obama on the campaign trail reveal how prevalent confusion about the role of judges has become: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” Cf.: http://elections.nytimes.com/2008/president/issues/judges.html 110 Cf. Lev. 19:15 “You shall do no injustice in judgment; you shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.”

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defined by reason.111 Now, justice is understood by Aristotle and St. Thomas to be chief

among the moral virtues as it is by means of justice that man’s common life is ordered,

between individuals among one another, and between each individual and the whole

political community of which he is as “a part to the whole.”112 There are thus micro and

macro human realms in which order is sought to be preserved, or reestablished, through

the cultivation of the virtue of justice. And it is within the macro realm of civic or

political justice that the death penalty must be confronted and tested regarding whether it

is capable of striking a truly moral mean and thus interminably identifiable as just in

principle, though in particular circumstances it may be judged to be unjust in practice.113

Though the case may without too much difficulty be made in principle, as the prudential

realm of human matters requires individual human agents to apply such principle to

particular circumstances in particular historical times, the latter must be left to the

prudential discernment of those individuals into whose hands authority has been

entrusted by God at any given time. This, as alluded to above, is a difficult proposition

for postmodern minds to grasp or give assent to. There is, contrary to the counsel of

ancient and medieval thinkers, a desire to have the same degree of certainty in all matters,

whether or not the subject matter itself allows of such certainty. The human moral realm

is just such a matter that does not allow of exact categorical or mathematical certainty,

and while the postmodern mind is seemingly comfortable with relativism with respect to

foundational principles and values, it is not so with the application of principles to

111 Cf. Aquinas, STh, II-I, q. 59, a. 4, corpus. 112 Cf. STh, II-II, q. 64, a. 2, corpus: “Now every individual person is compared to the whole community, as part to whole. Therefore, if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since a little leaven corrupteth the whole lump (1 Cor. V. 6); cf. also, Q 58, a5, corpus. 113 Cf. Aristotle, Ethics, Book V, 7, 1134b 20-1135a 10.

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particular matters. It is on account of this inalterable nature of the prudential moral realm

that categorical prohibition, principled or prudential, falls outside of the abolitionists’

hands to make otherwise, even by the most earnest and well intentioned fiat.

But in two non insignificant ways the issue is capable of influence in our present

political order by someone of Sr. Helen’s persuasion, which does not ineluctably put her

at odds with her self-identified nemesis, and fellow Catholic, Justice Antonin Scalia.114

This will be developed more fully in Part IV. It is enough here to point out that it is not

granted by Sr. Helen even that capital punishment is just in principle, putting her squarely

in the reductionist reading of Evangelum Vitae and of the subsequent statements and

alterations of the Church’s language on the matter, though her own writings reflect

contradictory evidence of this radical claim which even those arguing for a prudentialist

read of Evangelum Vitae do not countenance. For example, in much of her

argumentation, it appears on the surface that it is the inherently fallible and potentially

inequitable application of the law, particularly as she sees it in the southern “death-belt

states,” that primarily constitutes her opposition, while at other times she reveals that it is

not only the application, but the very principle itself, that is judged by her as untenable.

Consider the following:

114 “Justice Scalia and I couldn’t be further apart. He provides the “legal groundwork” to send people to their deaths, and I resist his orders every way I can. He sits on his bench in marble chambers, and I sit in visiting stalls on death row. When he enters Court chambers in his black robe, everyone stands; and when he speaks, everyone listens…Justice Scalia attends Mass in a wealthy white suburban parish and sings Latin hymns. I attend Mass in an African American church and sing spirituals. Scalia and I both attended Catholic universities as undergraduates, but he got his graduate degree at Harvard Law School and I got my “higher” degree in an inner-city African American housing project in New Orleans. When Scalia sends people to their deaths, he never sees their faces. But I see their faces as they turn to look at me when they are being killed. Scalia works mostly behind the scenes in the Court, while I live my life in public…Scalia quotes the Bible to justify government’s “divine authority” to kill “evildoers,” and I summon the words and example of Jesus, who transformed the mandate of “an eye for an eye” by urging forgiveness, even of enemies.” Prejean, The Death of Innocents, 171-72.

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Until now I haven’t pushed much to find out about Dobie’s guilt or innocence. I never do. I don’t believe that the government should be put in charge of killing anybody, even those proven guilty of terrible crimes.115 I reject the constitutionality of the death penalty because I’ve seen close up how the death penalty operates. The Supreme Court could declare the death penalty unconstitutional tomorrow morning if it were willing to confront the unfair patterns that have emerged during the last twenty-five years of state killing.116 [emphasis added] I cannot believe in a God who metes out hurt for hurt, pain for pain, torture for torture. Nor do I believe that God invests human representatives with such power to torture and kill. The paths of history are stained with the blood of those who have fallen victim to “God’s Avengers.” Kings and Popes and military generals and heads of state have killed, claiming God’s authority and God’s blessing. I do not believe in such a God…no government is ever innocent enough or wise enough or just enough to lay claim to so absolute a power as death.117 [emphasis added]

The legitimate and righteous passion that should motivate prosecutors is the passion for justice. But in O’Dell’s case, I wonder. It seems hard for some prosecutors to stay pure of heart in pursuing a case to its final outcome. I think of what Dorothy Day, the Catholic advocate for poor people, once said: “We have to build a society in which it is easier for people to be good.” If we ever do find a way to “fix” the application of the death penalty, to make it fair, helping prosecutors to “be good” and fair-minded servants of justice by being made accountable will need to be a vital part of the “fixing.”118

In this final quote Sr. Helen comes as close as she ever does to admitting the irreducible

human prudential element at the heart of political justice. And thus she inadvertently

acknowledges the crucial role not of enacting more laws – whether categorically

abolishing certain sentencing as unjust in principle, or directing energy solely to righting

claims of its “unfair” application – but of morally forming individual persons who are

called to primarily rule over themselves, in addition to those given authority for just

social rule over others in turn. Since the Church’s alluded to embrace of the “new

consciousness” of universal human rights and the “social justice” agenda, and to the

degree that a focus on fighting injustice within the system has diminished the primary

work of pastors and religious of preaching the gospel of spiritual redemption in Christ 115 Ibid, 28-29. 116 Ibid, 188. 117 Prejean, Dead Man Walking, 21. 118 Prejean, The Death of Innocents, 81-82.

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and forming souls through religious and moral instruction, prison construction and

violent crime has only increased. No amount of human legislation can justly rule over a

people who have ceased to be formed as capable of ruling over themselves. This

quandary of members of the Church forwarding an emphasis to preach via political

activism a “social gospel” to the neglect of their primary “job” of forming her members

morally, spiritually and intellectually in the objective and saving truth of the redemptive

gospel, will be addressed further below. But regarding Sr. Helen’s use of the term “fair”

with respect to her alleged and decidedly inconsistent concern of proper application of

the death penalty, as Justice Scalia has pointed out, unless the American people should

choose to abandon the foundational principle of federalism which necessarily gives

discretion to the states, including whether or not to include capital punishment among the

sentencing options for juries, it is not possible to achieve the “fairness” she advocates.

Only it is obvious that the Kantian categorical alternative119 mentioned by Scalia is not

really a fairness that Sr. Helen, or her ideological opponents for that matter, would prefer:

You want to have a fair death penalty? You kill; you die. That’s fair. You wouldn’t have any of these problems about, you know, you kill a white person, you kill a black person. You want to make it fair? You kill; you die. And some states used to have laws that had mandatory death for certain crimes. My Court said that’s unconstitutional, although it was certainly not unconstitutional when the Eighth Amendment was adopted. Now that may be a good idea or it may be a bad idea. My point is it’s not for me to decide. It’s for me to decide what the Constitution says.120

This point, which involves prudential questions within various forms of government in

general, and the American form of government in particular, requires additional

comments and will be addressed further in Part IV.

119 See note 76. 120 Scalia, “Religion, Politics and the Death Penalty.”

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In the approximately hundred pages preceding the passionate soliloquy wherein

one of the statements which began this section are found, Sr. Helen describes in

excruciating detail the two death penalty cases which were the impetus for writing her

second book. Unlike those death row prisoners she tells the stories of in her first book,

Dead Man Walking, whom she believed were guilty of the crimes they were accused of,

the two men introduced to the reader in The Death of Innocents, Dobie Gillis and Joseph

O’Dell, were believed by Sr. Helen and many other competent legal and forensic experts

to have been the victims of overzealous and unscrupulous prosecutors, unjustly caught up

in a corrupt Byzantine system wherein evidence was suppressed, misconstrued, or

entirely falsified, and which modern DNA analysis capabilities have been used with

increasing success to unmask. Unfortunately for the cases of the two men Sr. Helen

details in her second memoir, such relatively new technological advancements were,

though not too little, nonetheless too late to halt legal processes which had gained over a

decade of momentum.

Such cases, if true, are without question abhorrent examples of inexcusable

injustice, and the case is well made by Sr. Helen’s passionate, if at times emotionally

manipulative prose, with its interspersed questionable accountings of the tradition she

purports to represent. While there is much of interest in her writings that is beyond the

scope of this present inquiry, her work is necessary to engage for two reasons. Firstly,

because of the popularity and influence her position has gained since her original book

was turned into a feature Hollywood film. However admirable her earnest efforts – based

upon an undoubtedly unique first hand experience within a human legal system that no

one denies is forever in need of reform – as the reductionist reading representative par

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excellence, her work on this issue is in untenable tension with a tradition that she judges

and preaches to have been in error, pure and simple.121 On this point she reveals the

more radical theoretical basis of her “social” gospel:

Sixteen hundred years is a long, long time for a religious body to uphold state killing, and the principles on which Catholic teaching has endured for so many centuries are clearly enunciated: For the protection of society, the state has the right to kill those who have committed “grave” crimes. Catholic teaching always stressed self-defense of society more than revenge or divine retribution as the reason for capital punishment, though in popular piety, God’s “just punishments” was always writ large, with God pictured as Divine Judge so intent on “justice” that “He” (always imaged as male) was willing to accept the death of his own son as atonement for human sinfulness. The theological reasoning went that because a Divine Being had been offended, the offense was infinite, so only a divine being could offer fitting infinite reparation – no mere “creature” sacrifice would do. So surely such an expiation-seeking God would not quibble about throwing a guilty mortal into hell for all eternity – a theme stressed by DA Harry Connick Sr. when he debated me on the issue…He reasoned that if a just God could punish wayward souls by condemning them to an eternity of hellfire, surely as DA he was justified in seeking the death penalty for criminals. He explained that the punishment he sought was a lesser punishment than burning in “unquenchable” fire for all eternity. Besides, Connick reasoned (as judges of the Inquisition once reasoned), imposing the death penalty could have the salutary effect of giving murderers time to repent and save their souls from hell. When I first heard Connick express this idea, I was so appalled that I hardly knew how to respond. On reflection, however, I have found his argument helpful because it so transparently reveals the image of God that hovers beyond many religious believers’ support for the death penalty. Is God vengeful, demanding a death for a death? Or is God compassionate, luring souls into love so great that no one can be considered “enemy”?122 [emphasis added]

There is much that could be responded to in this lengthy passage, including inquiring

what Sr. Helen makes of Scriptural passages such as those teaching that God disciplines

and chastens those whom He loves (Prov. 3:11-12, Heb. 12:5-6, Rev. 3:19). She fails,

however, to see an important distinction that while grace forgives, nature does not. J.

Budziszewski addresses this point well, writing,

Whom God loves, He disciplines. For our good, not even divine forgiveness means that the consequences of sin in this life are fully remitted. Among these consequences is punishment by human magistrates, who act as God’s agents whether they know it or not. The sentences of human magistrates cannot be, and are not meant to be, a final requital of

121 It is noteworthy that her books are consistently listed among the culture of life “resources” recommended by the USCCB. 122 Prejean, The Death of Innocents, 120.

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unrepented evil; that awaits the great day when Christ returns to judge the quick and the dead. But they foreshadow that final justice, so that something of the retributive purpose is preserved. In the meantime they promote restraint, repentance, and amendment of life.123

But because of her considerable influence, it is most troubling that in addition to her

failure to adequately address manifold passages in Scripture, Old and New, which present

difficulties to such a 21th century this-worldly exclusive interpretation of compassion, she

offers an interpretation of tradition which not only confuses the entirely distinct ideas of

personal revenge and just retribution, but further denies that the latter has been at the

heart of the Church’s traditional teaching, as addressed above, directly developed from

Scripture itself.

Because Sr. Helen reveals herself in so many places to have been more influenced

by unorthodox liberation theologies – to be caught up in the “wave of new

consciousness” that struck Catholics as well as the rest of the country in the 1960’s –

than by the authentic tradition which she presumes to speak on behalf of, many dismiss

the need to engage her work on any serious level. But in addition to the initial reason for

engagement raised above, it is troubling and thus all the more worthy of attention to see

the timeline of the Church’s alteration of the language regarding the death penalty in the

1997 edition of The Catechism of the Catholic Church given her own account of its

relation to her direct and emotional appeal to Pope John Paul II on behalf of the life of

Joseph O’Dell in that same year. According to Sr. Helen, she penned her letter for the

Pope on January 1, 1997, which was delivered by O’Dell’s legal advocate to the

Secretary of State’s office in the Vatican in the midst of a high profile visit organized by

members of the Italian parliament, as she herself was unable to make the trip. In part,

123 J. Budziszewski, “Capital Punishment: The Case for Justice,” 41.

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this letter was to thank him for his previous intercession on behalf of O’Dell’s case, as

well as further encouraging him to move official Church teaching farther in the direction

of principled opposition against the death penalty. She writes,

A society and its government would have to care equally about the life of all of its members to be entrusted with the death penalty, and we know that on this earth no society can make that claim. I pray for the day when Catholic opposition to government executions will be unequivocal. I say this because I know that words of the law and words in church teachings can be used to justify and pursue the death penalty, and I have watched as these words become flesh in front of my eyes as I have watched human beings die at the hands of the state.124

The emotionally charged and beautifully written letter was delivered into the

Pope’s hands on January 22, 1997. Monsignor Caccia, who delivered the letter, later told

Sr. Helen that, “The Holy Father read your letter. He read every word.”125 One week

after Sr. Helen’s letter was delivered, she wrote in her journal, “Big news. On January 29

Cardinal Joseph Ratzinger, Prefect of the Congregation of the Doctrine of the Faith,

announced that a change would be made in the Catechism to reflect recent ‘progress in

doctrine’ about the death penalty.”126 Sr. Helen writes regarding her interpretation of this

timeline,

The pope received my letter on January 22. Cardinal Ratzinger’s announcement came on January 29. The change in the Catechism was officially promulgated September 8, 1997, on the occasion of the Latin edition. By this change in official teaching, bolstered by strong, unequivocal pronouncements against the death penalty by the pope, the Catholic Church at last takes its place among the many institutions and nations that stand in

124 Prejean, The Death of Innocents, 127. 125 Ibid, 128. 126 Ibid, 129; “Since the original appearance of the universal Catechism in its French-language edition in December 1992, there have been 103 amendments to the text, the cardinal reported. The most significant changes have involved the Church's teaching on capital punishment. Although the death penalty is not excluded in principle, the teaching of Pope John Paul II in his 1995 encyclical Evangelium Vitae suggested that in practice the state should not invoke capital punishment. That development in Church teaching has been incorporated in the new Latin edition of the Catechism. Earlier this year, when he unveiled the Russian-language edition, Cardinal Ratzinger announced that the editorial change on this item would be made in order to keep the Catechism abreast of the "progress in the doctrine." Catholic World News, Latin Catechism Shows New Death Penalty Teaching, September 9, 1997, cf. http://www.cwnews.com/news/viewstory.cfm?recnum=5780

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principled opposition to the death penalty and work to bring about its abolition.127 (emphasis added)

This interpretation of the timeline as well as the nature of what Sr. Helen deems a

“change in official teaching…[to] principled opposition” is without doubt open to

significant challenges – although hers would seem to be practicably supported given the

overwhelming balance of subsequent episcopal missives urging Catholic faithful to work

towards abolition – but is nonetheless noteworthy for the radical claim it makes on so

popular and prominent a stage. Regarding the nature of this change, Cardinal Ratzinger

himself said the following in an interview in 2003, which is not acknowledged by Sr.

Helen in her book published in 2005:

On the question of the death penalty, there was a notable evolution between the first edition of the 1992 Catechism and its typical edition in Latin, published in 1997. The substance remained identical, but the structure of the arguments was developed in a restrictive sense. I do not exclude the fact that on these topics there might be variations in the type of argumentations and in the proportions of the different aspects of the problems. I would exclude radical changes, however.128 (emphasis added)

By “radical changes” we may infer that Cardinal Ratzinger is affirming the prudentialist

read as forwarded by Cardinal Dulles, that while the Church has not altered an

understanding of the state retaining a principled right to exact capital punishment for

grave capital crimes, much of the Church’s episcopal leadership deems its application in

present day political climates to be imprudent and unconducive to restoring a “culture of

life.”129 Even more recently, Cardinal Ratzinger wrote the following, which also is

disregarded by Sr. Helen and those bishops who continue to encourage capital

punishment to be subsumed alongside other life issues for a “seamless” morally

equivalent condemnation:

127 Prejean, The Death of Innocents, 129. 128 “Cardinal Ratzinger on the Abridged Version of the Catechism,” Zenit.org, May 2, 2003. 129 See note 32.

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Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.130 [emphasis added]

The United States Conference of Catholic Bishops, however, continues to invoke a need

to forward “a consistent ethic of life” in the line of Cardinal Bernadine’s “seamless

garment,” phrases which are then recruited by abolitionist crusaders against the death

penalty as though a practical moral equivalency is to be assumed. Robert Kraynak has

posed a formidable objection involving the use of “rights talk” even when put in service

of the pro-life agenda, precisely because of the blurring of issues inherent in, and

encouraged through, the use of such phrases:

Proclaiming a right to life easily turns into the claim that biological existence is sacred or that mere life has absolute value, regardless of whether it is the life of an innocent unborn child or the life of a heinous criminal. And the claim that life is a “right” diminishes the claim that life is a “gift” from God: How can a gift be a right? Proclaiming a right to life eventually leads to the mistaken idea of a “seamless garment of life” that is indistinguishable from complete pacifism or a total ban on taking life… even for just and necessary causes. It also makes one forget that the good life, not to mention the afterlife, is a greater good than merely being alive in the present world – an unintended but significant depreciation of Christian otherworldliness.131

But whatever the possible arguments for a prudential value of the proposition that

society must needs evolve towards an equitable account of the injustice committed in the

taking of innocent life in the womb, for instance, along with that of a serial rapist-

murderer, so that the value of human life and dignity in general may be more surely

130 Cardinal Ratzinger, “Worthiness to Receive Holy Communion: General Principles,” §3, June 2004. 131 Kraynak, Christian Faith and Modern Democracy, 172.

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upheld, again, Sr. Helen forwards the argument that the Church has finally herself

evolved with respect to this issue in principle. She writes,

The Catholic Church has evolved to a position of principled opposition to the death penalty in no small part because the church is a worldwide body whose members are influenced by changing currents of consciousness across the globe, especially once Pope John XXIII freed the church to see “signs of the times” in a positive way.132

Whom else does Sr. Helen see as beneficiaries of this progressive consciousness that has

been in evidence since the turbulent era of the 1960’s? She continues,

Shaped by such consciousness, Russian president Vladimir Putin, when responding to the bombing of an apartment building in 1999 by “international terrorists” that killed three hundred Russians, did not call for a reinstatement of the death penalty in Russia. On national television, Putin said, “Sometimes it seems I would have strangled [the terrorists] with my own hands. But these are only emotions. As a man with a basic legal education, I am well aware that the toughening of punishment does not reduce crime… Only the Almighty has the right to take life.”133

Leaving aside Putin’s referencing of deterrence as a primary end of punishment, the

citation of his person as a moral authority on this or any matter would be amusing if it

were not so revelatory of a deeply disturbing level of naïveté, the imprudence of which is

only outweighed by its danger to, and neglect of, the real work of defending human

dignity in the practical realm of instituting civic policy in a fallen world. Jesus did

command his followers to be innocent as doves, but also wise as serpents (Matt 10:16).

Putin’s wide swath of political opponents who have suffered soviet style trademark

sabotage by such means as polonium 210 poisoning,134 or the twenty journalists since

2000, when he took office, critical of his administration who have subsequently died

under “suspicious circumstances,”135 would not find his words of deference to the

132 Prejean, The Death of Innocents, 135. 133 Ibid, 136. 134 Cf. Alexander Litvinenko, “Why I Believe Putin Wanted Me Dead”, The Mail, November 25, 2006; Rebecca Camber, “How Many More Were Poisoned?” The Daily Mail, November 25, 2006. 135 Andrew Osborn, “The 20 Journalists Who Have Lost Their Lives in Putin’s Russia”, The Independent, March 11, 2007.

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Almighty so convincing. The Russian President’s public lip service to God as alone

having the right to take life is as helpful to the true cause of human dignity as the recently

collapsed United Nations Commission on Human Rights, which despite all its lofty

declarations consistently counted among its rotating 53 members some of the most

abusive nation-states in the world, including Sudan and Saudia Arabia136 at the time of its

replacement in 2006 with the UN Human Rights Council, a council whose membership in

2009 included Saudia Arabia, Cuba and China. No less telling is the UN’s recent

election of Iran to its Commission on the Status of Women.137

Such anecdotes are revelatory of a problem inherent in humanist and idealist

philosophies, which no baptism by activist desire can render an authentic representative

of the decidedly more realist tradition of the Catholic Church. Regarding such trends and

their implications for the question of punishment Ralph McInerny observes,

Opposition to the death penalty tout court puts one in some strange company, rendering ambiguous the ascription of this opposition to a keener moral sense in our times. The secular Enlightenment attitude toward human action, responsibility, and ultimate destiny is antithetical to a sound philosophical and Christian view of crime and punishment. It is noteworthy that there are now campaigns against life imprisonment as well as capital punishment. The animus is against punishment as such rather than a species of it.138

Religious activists such as Sr. Helen have only accolades to shed upon the crafters

of the United Nations Universal Declaration of Human Rights,139 despite the overall

136 Cf. “The Shame of the United Nations”, The New York Times, February 26, 2006, http://www.nytimes.com/2006/02/26/opinion/26sun2.html?_r=1&oref=slogin 137 “Without fanfare, the United Nations this week elected Iran to its Commission on the Status of Women, handing a four-year seat on the influential human rights body to a theocratic state in which stoning is enshrined in law and lashings are required for women judged "immodest."” Fox News, April 29, 2010, http://www.foxnews.com/world/2010/04/29/elects-iran-commission-womens-rights/ 138 Ralph McInerny, “Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment.” 139 “To permit the execution of human beings is per se to permit torture, and at this point in our history we must look not to the Catholic Church but to the U.N. Universal Declaration of Human Rights for the clearest, unequivocal endorsement of every human being’s inalienable right not to be killed (article 3) or

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subsequent sham record of such a body, while the more circumspect and cautious critic of

such “progressive” idealism, particularly in respect to the extent to which such language

has been incorporated into the teaching documents of the Church, is often caricatured as

the stubborn, anti-progress traditionalist who closes himself off from the evolving global

consciousness. Let us now turn more explicitly to the tradition of the Two Cities, as well

as the respective roles of the virtue of prudence within those cities, in order that these two

competing accounts of the true way forward for human dignity may be judged with

respect to one another.

“subjected to torture or to cruel and degrading punishment” (article 5).” Sr. Helen Prejean, C.S.J. “A Response to John Langan’s Essay,” Choosing Life: A Dialogue on Evangelium Vitae, 233.

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IV. Whose Prudence, Which City?

I would hold that [they] are morally accountable [who] disregard the prudential judgment of the hierarchical leaders, who speak with authority even when they are not handing on the word of the Lord (cf. 1 Corinthians 7:25)…The decision whether and when to apply the death penalty cannot be properly made on the basis of abstract dogmatic considerations alone. Christian moral reasoning calls for a high degree of prudence.140

This point made by Cardinal Dulles is an important one, and yet when considered

in the light of the doctrine of the Two Cities, there is additional complexity to

determinations of a prudential nature that may not be resolved merely by prudential

judgments promulgated by particular hierarchical leaders of the Church. The Catholic

American is a citizen of both cities, and while objectively the City of God, and thus the

“princes” of that city as it sojourns on earth, trump, so to speak, in their prudential

judgments those of the city of man, such judgments do not carry the infallible protection

that judgments upon revealed matters of faith do within the Church’s teaching mission. It

would indeed be imprudent for any member of the Church to dismiss the prudential

judgments of members of the ecclesial hierarchy out of hand, but it would also be

imprudent to disregard both the steady counsel of tradition on this matter as well as the

history, democratic process and constitutional framework of the regime in which that

member finds himself. In matters where human law reveals itself to be in opposition to

the natural and eternal laws, such is by definition unjust and the Christian citizen is not

bound to obey it.141 But the matter of the state’s legal, and indeed moral right to exact

capital punishment upon those citizens who disrupt the tranquillitas ordinis through

grave acts of capital violence is not in principle called into question even by those

140 Dulles, “Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment”. 141 Cf. EV, §72.

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bishops campaigning for its ‘prudential’ abolition. Rather, they seem to be urging an

understandable, if improper, or at the very least arguably imprudent, sublimation of the

fallen secular state to the objectively higher principles of the Christian order.

An extended passage from Archbishop Chaput’s thoughtful personal statement on

the matter will serve as a good example of how the lines of distinction between the two

cities are often blurred beyond recognition in such pastoral exhortations that have become

the norm in the decade following the promulgation of Evangelium Vitae, by bishops

considered “conservative,” as in the case with Chaput, no less than those deemed to be

“liberal”:

As a people, we must never allow ourselves the luxury of forgetting the injustice done to victims of murder who cannot speak for themselves – or our obligation to bring the guilty to full accounting. But as Jesus showed again and again by His words and in His actions, the only true road to justice passes through mercy. Justice cannot be served by more violence… Executions may take away some of the symptoms for a time (living, human “symptoms” who have names and their own stories before God), but the underlying illness – today’s contempt for human life – remains and grows worse. In Genesis 4:10-16, humanity’s first murderer – Cain, the man who brought bloodletting into the world – was spared by the God of justice. We should remember that. God’s ways are not our ways; they are wiser and better. God’s heart, unlike ours, is driven by love, not anger... Recognizing a criminal’s humanity is bitterly difficult when our hearts are clouded by pain. But the same needle that poisons the killer in every state execution also poisons us as a culture…

[The Catholic teaching on the death penalty] is not an absolute rejection of lethal force by the state. The death penalty is not intrinsically evil. Both Scripture and long Christian tradition acknowledge the legitimacy of capital punishment under certain circumstances. The Church cannot repudiate that without repudiating her own identity…

What Catholic teaching on the death penalty does involve is this: a call to set aside unnecessary violence, including violence by the state, in the name of human dignity and the building of a culture of life. In the wake of the bloodiest century in history, the Church invites us to recover our own humanity, choosing God’s higher road of restraint and mercy instead of state-sanctioned killing that implicates all of us as citizens… In modern industrialized states, killing convicted murderers adds nothing to anyone’s safety. It is an excess. It cannot be justified except in the most extraordinary conditions. Moreover, for John Paul II, the punishment of any crime should not only seek to redress

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wrong and protect society. It should also encourage the possibility of repentance, restitution, and rehabilitation on the part of the criminal. Execution removes that hope.142 [emphasis added]

While much could be remarked upon beyond what present constraints will allow,

a few points in particular are to be noted. Firstly, the proposition forwarded by the

Archbishop that, “Justice cannot be served by more violence” is patently false. The

injustices suffered by those Jews who were systematically being slaughtered in the Nazi

holocaust could not have been halted apart from the violent military campaigns of the

Allied forces. The killing of individual members of the SS forces, who also had “names

and their own stories before God,” did serve to address by violent means a particularly

perverse “contempt for human life.” Secondly, the Archbishop enlists the story of Cain’s

murder in Genesis in the same questionable manner as Evangelium Vitae does,

prescinding entirely from the arguably traditional Augustinian interpretation that prior to

the first established city, there was no civil authority by which just punishment could be

meted out for the offense. Thirdly is the Archbishop’s “reminder” that “God’s ways are

not our ways…God’s heart, unlike ours, is driven by love, not anger.” Apart from the

point made previously that Scripture clearly attests repeatedly to the precedent that God

chastens those whom He loves, Christ Himself acknowledges a distinction of kingdoms

which makes such scriptural ‘proofs’ problematic. As recorded in the Gospel of John,

when questioned by Pilate as to why his own people had handed him over, Jesus replied,

“My kingship is not of this world; if my kingship were of this world, my servants would

fight that I might not be handed over to the Jews; but my kingship is not from the world”

(John 18:36) [emphasis added]. In general, ‘prooftexting’ this issue out of the prudential

142 Chaput, “Justice, Mercy and Capital Punishment”.

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political sphere does not hold, as far more Biblical texts support this right of the state

within the context of civilizations with at least an equal, if not much greater “contempt

for human life” than the present, even if technological advances have made it possible to

kill on a vastly greater scale than in the past. Fourthly is the statement of the Archbishop

that “Recognizing a criminal’s humanity is bitterly difficult when our hearts are clouded

by pain.” This angle of the emotional component inescapable in human wrestlings with

evil fails to acknowledge another angle which sees “recognition of humanity” as

involving the treatment of malefactors as responsible moral agents who will have to face

a judgment far more exacting than that of the loss of their physical life at the hands of the

state. Fifthly, while the Archbishop acknowledges that the death penalty is not per se

malum, and that a “balance of rights” must be maintained between the murderer and

society, we see again, as addressed above, a reduction of the retributive element of

punishment to a new common denominator of whether society’s “safety” may be

physically defended apart from resorting to such an “excess” as capital punishment.

Chaput writes that it cannot be justified “except in the most extraordinary conditions”,

and yet, if the categorical abolition of the penalty in American law is achieved as desired,

a desire that is arguably unconstitutional, there is no longer left any room for prudential

determinations by the state should such an “extraordinary circumstance” arise. And

regardless, the discernment of such a circumstance would fall ultimately within the

jurisdiction of the civil authority, not that of the ecclesial hierarchy, although the latter

are by all accounts justified in serving as a voice of moral influence in the ear of the

secular state. And lastly, the Archbishop’s declaration that execution removes the hope

of repentance is at the very least debatable, demonstrably in contradiction to past

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statements within Church tradition, most prominently those of St. Thomas,143 as well as

the common sense wisdom best voiced by Samuel Johnson, “Depend upon it, sir, when a

man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.”144

Statements such as that made by John Paul II in Evangelium Vitae that modern penal

incarceration practices “are more in conformity to the dignity of the human person”145 are

fraught with potential cracks for arguing the contrary.146 If the convict is so violent that

lifelong solitary confinement is required for the protection of fellow prisoners, it is far

from obvious that a life so lived out is more in keeping with the dignity of man – whom

Gaudium et Spes emphasizes is in his “innermost nature a social being” 147 – than is

facing a capital sentence, a severe mercy not accorded to those whose fate is to die a

natural or unexpected death,148 namely, that of knowing the hour of the thief’s

143 Cf. Aquinas, STh, II-II, q. 25, a. 6, ad 2: “It is for this reason that both Divine and human laws command such like sinners to be put to death, because there is greater likelihood of their harming others than of their mending their ways. Nevertheless the judge puts this into effect, not out of hatred for the sinners, but out of the love of charity, by reason of which he prefers the public god to the life of the individual. Moreover the death inflicted by the judge profits the sinner, if he be converted, unto the expiation of his crime…” 144 Source: http://www.samueljohnson.com/mortalit.html 145 EV, §56. 146 To give just one contemporary example of how such a universal claim can be anecdotally argued against: “Drug dealers are able to break into jails to do business, and life inside prison is so comfortable that inmates ignore opportunities for them to escape, the union that supports prison officers has claimed. The Prison Officers Association assistant general secretary, Glyn Travis, said yesterday that prisoners in Britain's toughest institutions would rather take advantage of cheap drugs, TV and breakfast in bed than risk life on the outside. He also claimed that at one high security prison, dealers and prostitutes entered via ladders to ply their trade; despite this ease of entry and exit, prisoners themselves were content to stay inside. Overall, he said UK jails were suffering from underfunding that had sent staff morale to an all-time low. "We're trying to manage a system that's just snowballing out of control," said Travis. "Every prison in Britain is under-staffed and over-crowded. Drugs are coming in at a rate that's so dramatic that [they] are actually cheaper than on the outside.” April 25, 2008, cf. http://www.guardian.co.uk/society/2008/apr/25/prisonsandprobation.justice 147 Gaudium et Spes, Chapter 1, §12. 148 “The Litany of the Saints expresses the attitude of Christian faith vis-à-vis death in the petition: A subitanea morte, libera nos, Domine, “from a death that is sudden and unprepared for, deliver us, O Lord.” To be taken away suddenly, without being able to make oneself ready, without having had time to prepare – this is the supreme danger from which man wants to be saved. He wants to be alert as he sets out on that final journey…If one were to formulate today a Litany of the Unbelievers the petition would, no doubt, be just the opposite: a sudden and unprovided death grant to us, o Lord. Death really ought to happen at a

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approach.149 While a comprehensive definitive argument cannot be made either way as

to the probability of repentance or conversion of any given individual, there is much to

suggest in Scripture and Tradition, as well as common sense, that man’s dignity is not

inherently assaulted, nor his hope for redemption quenched, by capitally facing the

consequences of his gravely injurious acts. Again, as argued by C.S. Lewis in his essay

The Humanitarian Theory of Punishment, “to be punished, however severely, because we

have deserved it, because we ‘ought to have known better,’ is to be treated as a human

person made in God’s image.” And as Leon Kass points out, “As the example of

Tolstoy’s Ivan Illich shows, even confronting our own death provides an opportunity for

the exercise of admirable humanity, for the small and great alike.”150

The forgoing engagement of Archbishop Chaput’s statement has been undergone

in order to illustrate what appears to be an increasing trend within Catholic episcopal

activism regarding this matter to collapse the traditional distinction of the Two Cities, and

thus confuse the crucial role prudence plays within the respective spheres of each. It may

be an understandable instinct to want to transpose the prerogatives of the state into what

are perceived as the higher standards of the Kingdom or City of God, but it is arguably

unwise to do so. This point may be evinced in yet another way. While death penalty

abolitionist Sr. Helen Prejean points repeatedly to St. Augustine’s writings defending the

state’s just right to inflict the ultimate punishment in terra as an example of the Church’s

stroke, and leave no time for reflection or suffering.” Joseph Cardinal Ratzinger, Eschatology: Death and Eternal Life, (Washington D.C: The Catholic University of America Press, 1988), 71. 149 “Blessed are those servants whom the master finds awake when he comes…know this, that if the householder had known at what hour the thief was coming, he would have been awake and would not have left his house to be broken into. You also must be ready; for the Son of man is coming at an hour you do not expect.” (Lk 13:37,39) 150 Kass, “Defending Human Dignity,” 314.

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“unenlightened” past,151 she fails to note that in his role as shepherd, he personally

intervened on behalf of those so sentenced, consistently interceding for clemency and

mercy even as he accepted as just the denials of some such petitions. As J. Budziszewski

has pointed out, “the question of mercy arises only on the assumption that some crime

does deserve death.”152 The role of prudential judgment in allowing for the bestowance

of mercy resides within the American political system in the powers of state governors

and the President of the United States to grant clemency on a case-by-case basis. Though

there is much talk in the present day of an impending “Christian theocracy,” which some

fear looms on America’s horizon, the Catholic Church from before the time of Augustine

has recognized in theory, and realized to greater or less degrees, a healthy respect for the

dual but decidedly distinct realms of the Two Cities. It is interesting to note again, in

light of Kraynak’s observations addressed above, that many of those who decry the

involvement of the Church in the state’s affairs see no problem with deducing state policy

from what is an essentially spiritual doctrine about the emphatically asserted but

empirically unverifiable notion of human dignity. Kraynak comments regarding

Christianity’s cooperation with such a deduction,

Christian faith is weakened from within by embracing democratic human rights as an inference from the dignity of the person or from a new interpretation of the Imago Dei…[from] the gradual abandonment of Christian ‘otherworldiness’ under the influence of modern ideas and the growing belief that improving life in this world is more important than the salvation of souls in the world-to-come…Their mistake lies in drastically misjudging the negative side effects of this move – in underestimating the corrosive effects of a culture of rights and the leveling effects of mass democracy on the human soul and on the institutions that are necessary to sustain a sense of the sacred. Instead of being alarmed by a convergence of the Two Cities, they seem pleased that the city of God and the earthly city are now operating on the same democratic wavelength, as

151 Cf. Prejean, The Death of Innocents, 118. 152 Budziszewski, “Capital Punishment: The Case for Justice,” 39.

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if the original democracy of the Gospels was finally being realized after centuries of misguided authoritarianism.153

Given such trends towards convergence, it will be helpful to turn once again to earlier

teachings of the Church delineating the proper jurisdictional distinction between the two

cities.

St. Thomas Aquinas, in a question in the Summa dealing with murder, dedicates

an article to addressing why it is not lawful for clerics to kill evildoers, as they “are

entrusted with the ministry of the New Law, wherein no punishment of death…is

appointed,” and that as their ministry is concerned with “better things than corporal

slayings, namely with things pertaining to spiritual welfare,” it is “not fitting for them to

meddle with minor matters.”154 This somewhat helps clarify how St. Augustine and other

shepherds of the Church could both defend the right of representatives of the state’s

authority to put criminals to death “according to the law or the rule of rational justice,”155

while in their ecclesial role could urge against condemnations to death.156 St. Thomas

additionally distinguishes, as noted above, that a private individual, while having a right

to defend his own life, may only himself slay the aggressor should that slaying be an

unintended secondary effect to the primary act of defense. As regards the killing of an

evildoer in so far as it is directed to the welfare of the whole community, St. Thomas

makes it clear that such an act “belongs to him alone who has charge of the community’s 153 Kraynak, Christian Faith and Modern Democracy, 168. 154 Aquinas, STh, II-II, q. 64, a. 4. 155 Cf. Augustine, City of God, Book I, Chapter 21. 156 “Man is what God made, sinner is what man made himself to be. So do not condemn people to death, or while you are attacking the sin you will destroy the man. Do not condemn to death, and there will be someone to repent. Do not have a person put to death, and you will have someone who can repent. Do not have a person put to death, and you will have someone who can be reformed. As a man having this kind of love for men in your heart, be a judge of the earth…Why destroy, by not loving, the one on whom you sit in judgment? Because what you are destroying is justice, by not loving the one on whom you sit in justice. “But penalties must be applied.” I don’t deny it, I don’t forbid it; only let it be done in a spirit of love, a spirit of caring, a spirit of reforming. (Sermo 13, c. 7, #8)

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welfare…Now the care of the common good is entrusted to persons of rank having public

authority: wherefore they alone, and not private individuals, can lawfully put evildoers to

death.”157 In the writings of both Augustine and Thomas we see the distinction

repeatedly emphasized between the prudential realm of the city of man and that of the

City of God. As pointed out by Thomas, it is fitting that ecclesial authorities ought not be

involved in putting any man to death, even as it is, as Augustine demonstrates, also fitting

that they should plead for mercy before the magistrates, while leaving the ultimate

decision to their prudential discretion. What is critical to emphasize however is the

importance of representatives of the City of God maintaining foremost their advocacy on

behalf of the higher end of man, and not ceding to magistrates of the earthly city a greater

power over man’s dignity than seems at present to be a common theme inherent within

prudential abolitionist advocacy camps. Regarding this confusion of roles, Fr. John

Neuhaus observations on this matter are noteworthy:

The main question at hand is prudential judgment as it relates to episcopal competence and responsibility. Prudential judgment is, of course, related to prudence, one of the four cardinal virtues. The Greek is phronesis, sometimes translated as “practical wisdom.” Aristotle distinguishes between wisdom (sophia) and prudence (phronesis). The first is understanding the nature of reality in a way that engages universal truths and the second is knowing what ought to be done in the light of the way things are. Although both wisdom and prudence are highly desirable in a bishop, neither is guaranteed by the “charism” of episcopal office. At the ordination of a bishop, we pray that he may be endowed with such graces, but it is no article of faith that such prayer is demonstrably answered.

While individual bishops may be prudentially gifted or challenged, problems are multiplied when prudential judgments issue from the bureaucratic sausage-grinder of the bishops’ conference. In the 1970s and early 1980s, under the dominant leadership of the late Joseph Cardinal Bernardin of Chicago, the bishops’ conference was producing celebrated statements on economics, welfare, nuclear deterrence, and sundry other domestic and foreign policies. At least the statements were celebrated by those on one side of the conventional political spectrum. The bishops were reading “the signs of the

157 Aquinas, STh, II-II, q. 64, a. 3.

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times” (Vatican II) at a furious pace and offering more prudential judgments than the market could bear…158 At this juncture of the discussion, Charles Cardinal Journet’s distinction of the

two powers of the apostolic hierarchy, namely that of order and that of jurisdiction, will

be helpful. Journet writes regarding these two distinct powers,

The end of the power of order is to convey to all ages in a hidden manner the drama of the Redemption and its fruits. The end of the power of jurisdiction, understood here in the broadest sense as covering both the extraordinary authority of the Apostles and the regular authority of their successors, is to prolong Christ’s witness to the truth by openly proclaiming to all ages the whole plenitude of Christian truth, both speculative and practical. The power of order which bestows grace and justifies from sin, opens heaven directly, se extendit ad ipsum coelum immediate, directe, as St. Thomas says. The power of jurisdiction points the way to heaven: it enables the Apostles to reveal new truths, it enables the Pope to determine the object of faith, to assemble a General Council, to regulate the legitimate use of the power of order, to absolve, excommunicate, grant indulgences, and to control all things in the Church militant.159 [emphasis added]

It is to be noted that the jurisdictional or canonical power of the apostolic hierarchy

properly extends to matters of the Church militant, not those of the earthly city, which she

inhabits only as a wayfarer and pilgrim. But in addition to this, within her canonical

powers, Journet also distinguishes an infallible as well as fallible prudential assistance:

The more important, universal, permanent, and urgent the decrees of the canonical power are, the more, consequently, they enter into the prudence and sanctity of the Church. On the other hand, the more particular, circumstantial, and temporary they are, the more they depend on the prudence of this or that minister of the Church and less on that of the Church herself. Hence, the distribution of her decrees into measures of a general order – where the Church intends to engage fully her prudential authority…and measures of a particular order – where the Church does not intend to engage fully her prudential authority: legislative applications, judiciary verdicts, penal sentences, and so on. Correlative to these two kinds of canonical measures, one must recognize two kinds of relative prudential assistance. First of all, there is an infallible prudential assistance (in the proper sense), which divinely guarantees the prudence of each of the measures of general interest… Next there is a fallible prudential assistance, which concerns the particular order. There is here a

158 Fr. Richard John Neuhaus, “Prudential Judgment”, On the Square, September 21, 2007, cf. www.firstthings.com/onthesquare/?p=854 159 Charles Cardinal Journet, The Church of the Word Incarnate, 22-23.

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divine assistance, for the measures taken will be wise, prudent, and beneficial with respect to their general orientation and for the cases taken as a whole; but this assistance is fallible, for it does not guarantee in the concrete situation the wisdom, prudence, and beneficence of each of the measures taken individually.160 [emphasis added]

As has often been pointed out in various ways, the formulae utilized in Evangelium Vitae

condemning the taking of innocent life can be seen as just such a case where it is clear

that the Church intends to “engage fully her prudential authority,” addressing matters “of

a general order” in reaffirming with the strongest language previously established moral

teachings.161 Whereas the decidedly less categorical language addressing the issue of

capital punishment in the same document, involving as it does “measures of a particular

order,” can be argued as the Church, in the person of John Paul II, not intending to

engage fully her prudential authority and thus characterized as employing a “fallible

prudential assistance,” which nonetheless is due respectful deference as coming from so

eminent an ecclesial authority.162 Concerning this qualified deference, Cardinal Dulles

writes,

160 Charles Cardinal Journet, Theology of the Church, (San Francisco: Ignatius Press, 2004), 148-149. 161 “Persistent journalistic confusions notwithstanding, the papal magisterium in Roman Catholicism is authoritative rather than authoritarian. That is, when the bishop of Rome speaks as the first among the Church’s teachers, he does so in order to give contemporary expression to the abiding tradition of the Church, rather than to impose his own personal philosophical or theological opinions on the consciences of the faithful. When Pope John Paul II, in Evangelium Vitae, confirmed that the “direct and voluntary killing of an innocent human being” (EV 57), abortion (EV 62), and euthanasia (EV 65) are always gravely immoral acts, he appealed to the natural law, “which man, in the light of reason, finds in his own heart (cf. Rom 2:14-15),” to “the written word of God,” to the “Church’s Tradition,” to the “ordinary and universal magisterium,” and to the consensus of the college of bishops. These condemnations are not, in other words, the private judgments of Karol Jozef Wojtyla, who happens to be the incumbent in the See of Peter. Rather they are the common judgments of those charged dominically with the authority and responsibility from another ecclesial context, the magisterium of the Church as exercised in teaching such as those found in Evangelium Vitae 57, 62, and 65 is saying, on behalf of the entire Church, “Here we stand. We can do no other.” George Weigel, “Evangelium Vitae on Capital Punishment,” Choosing Life: A Dialogue on Evangelium Vitae, 223. 162 This contrast of prudential authorities can be seen in §57 of EV which follows directly upon the paragraphs addressing capital punishment as prudentially undesirable: “If such great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment “You shall not kill” has absolute value when it refers to the innocent person…In effect, the absolute inviolability of innocent human life is a moral truth clearly taught by Sacred Scripture, constantly upheld in the Church’s Tradition

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It is important, however, to recognize that magisterial interventions of the prudential order are not always free from contingent and conjectural elements that can be sifted out only with the passage of time. The effort to identify such non-essential features is an important task of theology, and should not be confused with dissent, provided that the substantive teaching is accepted.163

The Church’s “substantive teaching” on capital punishment, it is to be noted again,

consistently has upheld the state’s right, and indeed at times duty, to exact this

punishment when duly appointed ministers of justice so prudentially judge. In addition to

the aforementioned points, The Profession of Faith published by the Congregation for the

Doctrine of Faith in 1989 contains three added paragraphs, “the first dealing with

revealed truths, the second with doctrines definitively taught as inseparably connected

with revelation, and the third with authoritative teachings that are neither revealed nor

inseparably connected with revelation, which consequently are not definitive”164

[emphasis added]. Ultimately, as pointed out by Cardinal Dulles, an encyclical such as

Evangelium Vitae “is an expression of the pope’s ordinary teaching authority, which

according to the common teaching is not infallible.”165 Further, as cited by Dulles, “The

individual doctrines that the Catechism affirms have no other authority than that which

they already possess,”166 that is, none other than they had in the documents from which

and consistently proposed by her Magisterium. This consistent teaching is the evident result of that “supernatural sense of the faith” which, inspired and sustained by the Holy Spirit, safeguards the People of God from error when “it shows universal agreement in matters of faith and morals”…Therefore, by the authority which Christ conferred upon Peter and his Successors, and in communion with the Bishops of the Catholic Church, I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral. This doctrine, based upon that unwritten law which man, in the light of his reason, finds in his own heart (cf. Rom 2:14-15), is reaffirmed by Sacred Scripture, transmitted by the Tradition of the Church and taught by the ordinary and universal Magisterium.” [emphasis added] 163 Avery Cardinal Dulles, SJ, Magisterium: Teacher and Guardian of the Faith, (Naples: Sapientia Press, 2007), 97. 164 Ibid, 86. 165 Ibid, 70. 166 Joseph Cardinal Ratzinger, “The Catechism of the Catholic Church and the Optimism of the Redeemed,” Communio: International Catholic Review 20 (1993): 479.

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they are drawn.167 If the understanding given by Journet of infallible and fallible

prudential assistance is correct, which would seem to be supported by the above

references, in addition to the careful treatment given the distinct moral issues addressed

in Evangelium Vitae, then adequate leeway is maintained by Catholic citizens of the

civitas hominis to either concur with the fallible prudential judgments of John Paul II and

a number of his fellow bishops concerning capital punishment (“of a particular order”),

and thus work within the given organization of particular political regimes to change the

law, or, on the other hand, to respectfully disagree as to the ultimate prudence of such a

course of action with respect to the political realm, while nonetheless remaining

prayerfully and humbly open to the potential wisdom of such prudential ecclesial

reasoning and its pastoral outgrowths and effects.

As has been touched upon previously in this work, the modern democratic form of

government is often claimed to obscure in the minds of many of its citizens the divinely

sanctioned authority that America’s founders clearly understood and articulated as

undergirding the free “consent of the governed.” The American Constitution is the

supreme law of the land, was crafted by the framers and ratified by the people to give

legislative form to what the Declaration of Independence articulated as an entitlement of

“the laws of nature and of nature’s God” for this people “to assume among the powers of

the earth” a separate and equal station of independent self governance. As one political

philosopher has often remarked, “Caesar” in America is not the supreme executive leader

at any given moment, nor even the Constitution, but the sovereign people under God,

through whom representatives are elected to serve the common good and by whom the

167 Dulles, Magisterium: Teacher and Guardian of the Faith, 85.

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Constitution was ratified and amended in the course of events.168 Because of this

immense collective responsibility of the people, it is all the more critical, as George

Washington emphasized, that of all the dispositions and habits necessary for the

prosperity of a government by the people, “religion and morality are indispensable

supports,” going so far as to say that it is “impossible to rightly govern the world without

God and the Bible."169 James Madison, the chief architect of the Constitution,

emphasized the critical point that, “We have staked the future of all of our political

institutions upon the capacity of mankind for self-government, upon the capacity of each

and all of us to govern ourselves, to control ourselves, to sustain ourselves according to

the Ten Commandments of God."170 Such words from our founders were clearly not an

advocation of theocracy, but evidence of the originalist understanding that the ingenious

American political system cannot run itself, and that the moral formation of those in

whose charge it is entrusted is of paramount importance to the integrity of the system

itself:

The whole elaborated system of federalism, separation of powers, checks and balances, enumerated powers, secured rights, periodic accountability of officials to the electorate, and the other arrangements that were to give American constitutionalism its special

168 Cf. Keyes’ keynote speech at the “War on Christians” conference, March 28, 2006: http://www.keyesarchives.com/transcript.php?id=410 169 Source: http://www.constitutional.net/qff.html; “Freedom is not only a gift, but also a summons to personal responsibility. Americans know this from experience — almost every town in this country has its monuments honoring those who sacrificed their lives in defense of freedom, both at home and abroad. The preservation of freedom calls for the cultivation of virtue, self-discipline, sacrifice for the common good and a sense of responsibility towards the less fortunate. It also demands the courage to engage in civic life and to bring one’s deepest beliefs and values to reasoned public debate. In a word, freedom is ever new. It is a challenge held out to each generation, and it must constantly be won over for the cause of good (cf. Spe Salvi, 24). Few have understood this as clearly as the late Pope John Paul II. In reflecting on the spiritual victory of freedom over totalitarianism in his native Poland and in eastern Europe, he reminded us that history shows, time and again, that "in a world without truth, freedom loses its foundation," and a democracy without values can lose its very soul (cf. Centesimus Annus, 46). Those prophetic words in some sense echo the conviction of President Washington, expressed in his Farewell Address, that religion and morality represent "indispensable supports" of political prosperity.” Pope Benedict XVI, “Faith Sheds New Light on All Things.” 170 Ibid.

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character were so many barriers against the persistent and predictable forces that might make popular government a hollow or cruel mockery. But governmental institutions could go only so far. While a constitution and its institutions might elicit and shape certain kinds of conduct, it also was true that a corrupt or slavish people could ruin even a very good constitution. What really mattered, in the last analysis, was the kind of people who would make up the American public. Their strengths, their limits, were the outer boundaries of what was possible.171

This critical formation of morally upright people, capable of governing themselves in a

sustainable fashion, is precisely the work that the Church should foremost concern herself

with. Apart from such formation the system necessarily falls ever farther from its exalted

aim of establishing justice in terra.

Arguments forwarded principally by Christians that the just authority of the

American political system is provably compromised and undermined by the sanction of

abortion through rulings by the courts, fail to address the fact that the courts’ very action

of usurping the legislative prerogatives of the people indict such precedents as clear

violations of the constitutional separation of powers, the result being that such rulings

themselves are unconstitutional. Justice Scalia has often made the point that it is not the

courts’ prerogative to legislate individual justices’ own moral convictions on any given

matter, but to interpret the law as written and apply it to those matters which come before

the court with prudential judgments befitting the individuating circumstances of

particular cases. Regarding Scalia’s position and her dissenting opinion, Sr. Helen

writes,

Though Justice Scalia insists that the Constitution is not “living” and does not “evolve,” he recognizes that the “moral standards of decency” of societies do evolve, “but the instrument of evolution,” he said in his Chicago speech, “is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.” Since legislators may do this only with a popular mandate, Scalia urges citizens who believe the death penalty should be abolished to devote themselves to the education of their fellow citizens to effect legislative reform.

171 Cf. http://press-pubs.uchicago.edu/founders/documents/v1ch18I.html

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I agree with Justice Scalia that educating the public is crucial if we’re ever going to put government killing behind us – I devote my life to that purpose – but I disagree that legislation is the only way to abolish the death penalty, much less a realistic possibility in the foreseeable future.172

As much as Sr. Helen might “disagree,” such is precisely the established constitutional

system of the present American regime of which she is merely one citizen among many.

She and those bishops who agree with her sentiments have the right to work to convince

their fellow citizens of the imprudence and undesirability of such sentencing, but not to

categorically remove such sentencing from the prudential political order, nor to forward

the novel idea that they be judged as principally immoral, nor unconstitutional.173

Again, as Kraynak emphasizes repeatedly, a recovery of the doctrine of the Two

Cities is of paramount importance, and as developed herein, such is shown to be the case

in particular when dealing with issues like capital punishment. The distinguishing of the

Civitas Dei from the civitas hominis is not to put a “wall of separation” between the two,

but to recognize the proper role of each with regard to guiding men to their respective

ends. Both Sts. Augustine and Thomas clearly delineate between the two realms, their

distinctions and priorities of jurisdictional authority being of different orders within the

hierarchy of created perfection, with the civitas hominis having its own limited goodness,

which rightly understood is ordered to “the better things of the heavenly city.” Augustine

writes,

172 Prejean, The Death of Innocents, 187-188; "I am not a moralist-in-chief … (nor an) ayatollah who is supposed to tell America what its morality should be…” Justice Antonin Scalia, April 9, 2008, cf. http://www.usatoday.com/news/washington/judicial/2008-04-09-scalia_N.htm 173 “The divine Redeemer founded the Church with a view to passing on through her to humanity his truth and grace until the end of time. The Church is his mystical body. She is wholly of Christ, and Christ is wholly of God. Politicians (and sometimes even churchmen) who want to make the Bride of Christ their ally or the tool of their national or international political groupings, strike at the very essence of the Church and damage her own life; in a word, they degrade her to that very level on which the struggles of temporal interests are fought out. That remains true, even where ends and interests are involved which are legitimate in themselves.” Pope Pius XII, Christmas message, 1951.

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But the earthly city, which shall not be everlasting has its good in this world…But as this is not a good which can discharge its devotees of all distresses, this city is often divided against itself by litigations, wars, quarrels, and such victories as are either life-destroying or short-lived…But the things which this city desires cannot justly be said to be evil, for it is itself, in its own kind, better than all other human good. For it desires earthly peace for the sake of enjoying earthly goods…These things, then, are good things, and without doubt the gifts of God. But if they neglect the better things of the heavenly city, which are secured by eternal victory and peace never-ending, and so inordinately covet these present good things that they believe them to be the only desirable things, or love them better than those things which are believed to be better – If this be so, then it is necessary that misery follow and ever increase.174

As noted by Kraynak, “Augustine’s superiority lies in his distinction of the Two Cities,

with its contrast between the perfection of the heavenly city and the radical imperfection

of all politics in the earthly city.”175

As seen throughout the course of this inquiry, the dialogues surrounding the issue

of capital punishment often neglect this important distinction and confuse the fallibility of

human representatives, and the consequent injustices bound to arise, with the unchanging

truths underlying the natural and supernatural orders within which man must necessarily

navigate his individual and social life. As a citizen of the civitas hominis, man must

abide within a particular system of human law, a system that is only an imperfect

participation in the eternal law and perfection he is called to in grace as a potential citizen

of the City of God. To abandon a realist perspective that takes into account these

decidedly distinct orders is to neglect the more profound implications of his imaged

dignity, a dignity that has its fullest expression in freely reclaiming his lost immortality

through the grace-facilitated act of assenting faith. Any claim holding the punitive loss of

life at the hands of state wielded retribution to be a categorical violation of human

dignity, reveals itself to have abnegated for all practical purposes the fuller understanding

174 Augustine, City of God, Book XV, Chapter 4, 481. 175 Kraynak, Christian Faith and Modern Democracy, 162.

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of the inherent profundity and true inviolability of that dignity, grounded as it is in the

transpolitical doctrine of the Imago Dei. It is for this reason that the present work has

focused primarily on recovering the traditional understanding of the source and nature of

man’s dignity, while also defending the accountability that dignity must face up to in this

present life, navigated as it must be within two citizenships, natural and divine.

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V. The Severe Mercy of Justice: Distinct Roles of Church and State in Upholding Human Dignity

As has been uncovered in the course of this work, in the wake of the Kantian

influence upon Christian political sensibilities, this clear delineation of the Two Cities, so

much emphasized in the writings of the patristic fathers and medieval doctors, has

increasingly diminished in prominence to the detriment and confusion of the dual citizens

of these distinct realms. Sr. Helen demonstrates in a revealing passage how this

confusion influenced her religious order to forgo their traditional spirituality and mission

of moral formation of individual persons in favor of a politically activist role determined

to change the system itself. She writes,

When I started out as a young Catholic nun teaching religion and English in junior high at St. Frances Cabrini in New Orleans, I never thought I would enter the surreal world of governmental killing chambers…It took me a long time to realize that following the way of Jesus meant involving myself in the lives of the poor. For a long time, I thought Christianity meant prayerfulness, charity to the needy, and obedience to the teachings of the Catholic Church. Charity was the most important virtue, but its practice was directed to individuals, never to systems of oppression. It was up to “political activists” to change systems. I thought of myself as a nun, not an activist. I was a spiritual presence in the world… In the late 1970’s, serious discussion arose in my religious community, the Sisters of St. Joseph of Medaille, about the dire struggles of the poor and disenfranchised. Why some sisters were asking, were so few of us involved with issues of social justice? I said, because “we’re nuns, not social workers. It’s not up to us to change what has always existed in the world…Didn’t Jesus say, ‘The poor you will always have with you’?” …The unspoken theology was that if people were poor, it must be God’s will. And if that was so, then certainly it was not God’s will for poor people to organize themselves to obtain justice. But then I woke up.176 [emphasis added]

As in earlier passages quoted by Sr. Helen, there is revealed in her passionate prose

theoretical theological errors that inevitably contributed to the imperative activist

conclusions she and her religious order eventually arrived at with respect to the practical

176 Prejean, The Death of Innocents, 179-180.

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political realm. Chief among such errors is the expressed abandonment of primarily

exercising charity towards individuals in lieu of attempting to direct it towards “systems

of oppression,” a move characteristic of the influence of “liberation” theologies. St.

Thomas, in his question addressing the object of charity, in the twelfth article, quotes St.

Augustine affirmatively that “There are four things to be loved; one which is above us,

namely God, another, which is ourselves, a third which is nigh to us, namely our

neighbor, and a fourth which is beneath us, namely our body.”177 While it might seem an

abstruse theoretical point in the throes of advocating for clemency on behalf of those

condemned to die, one can by definition only exercise charity (the love which is based on

the communication of happiness from God to man178) towards individuals. While Mother

Teresa of Calcutta shared Sr. Helen’s passion for defending the dignity of death row

inmates, making a point to visit those at San Quentin whenever her travels took her

through San Francisco, like her work with the poorest of the poor, she was emphatic, as

her successor Sr. Nirmala continues to be when asked what can be done to change social

conditions, that they are “not trying to alleviate poverty, [but] trying to love the poor.”179

When, during her visits to death row, Mother Teresa was asked about the terrible crimes

the prisoners had committed, she replied, “I never judge anybody because it doesn’t

allow me time to love them.”180 Mother Teresa, like St. Augustine, John Paul II, and

many other saints besides, are witnesses to the realm of the mercy of God and the heights

of love for one another that He calls each soul to attain. But unlike these witnesses, who

in their episcopal and ministerial offices pleaded for clemency for individuals before the 177 STh, II-II, q. 25, a. 12, sed contra. 178 Ibid, q. 23, a. 1, corpus. 179 “SVC Draws Worldwide Audience to Honor Blessed Mother Theresa,” Latrobe Bulletin, October 6-7, 2007. 180 “Mother Teresa Revered for Putting Others’ Needs First,” Pittsburgh Post-Gazette, October 7, 2007.

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authorities that held the life of those condemned in their hands, Sr. Helen, and those like

her who take an effectively reductionist reading of the prudential counsels of John Paul

II, serve only to undermine the right relation and critical distinction between the Two

Cities.

Pope Benedict XVI, in his first papal encyclical Deus Caritas Est, provides an

exceedingly germane and sapiential engagement with the understanding of charity as it

relates to the two cities which man inhabits. After addressing in Part I of the encyclical

the “difference and unity” of love in creation, understood as eros and agape, he

transitions from this consideration of the human and divine elements in love to “The

Practice of Love by the Church.” Benedict emphasizes that “the entire activity of the

Church is an expression of a love that seeks the integral good of man,” noting the

traditional “definition” of the Church, provided by St. Luke in the book of Acts, “whose

constitutive elements include fidelity to the “teaching of the Apostles,” “communion”

(koinonia), “the breaking of the bread” and “prayer” (cf. Acts 2:42).”181 In the second

part, he addresses precisely the issue pointed to above addressing Sr. Helen’s writings

concerning the proper object of charity for members of the Church:

Since the nineteenth century, an objection has been raised to the Church’s charitable activity, subsequently developed with particular insistence by Marxism: the poor, it is claimed, do not need charity but justice. Works of charity – almsgiving – are in effect a way for the rich to shirk their obligation to work for justice and a means for soothing their consciences, while preserving their own status and robbing the poor of their rights. Instead of contributing through individual works of charity to maintaining the status quo, we need to build a just social order in which all receive their share of the world’s goods and no longer have to depend on charity. There is admittedly some truth to this argument, but also much that is mistaken.182

181 Pope Benedict XVI, Deus Caritas Est, §20. 182 Ibid, §26.

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Pope Benedict goes on to grant that the Church’s leadership “was slow to realize that the

issue of the just structuring of society needed to be approached in a new way,” but after

highlighting significant developments of the Church’s social teaching as “a set of

fundamental guidelines offering approaches that are valid even beyond the confines of

the Church,” he goes on to identify “two fundamental situations” that must be considered,

“in order to define more accurately the relationship between the necessary commitment to

justice and the ministry of charity”183 [emphasis added]. The first “situation” dealt with

is that, “The just ordering of society and the State is a central responsibility of politics.”

Benedict elaborates:

As Augustine once said, a State which is not governed according to justice would be just a bunch of thieves: “Remota itaque iustitia quid sunt regna nisi magna latrocinia?” Fundamental to Christianity is the distinction between Church and State, or, as the Second Vatican Council puts it, the autonomy of the temporal sphere…Justice is both the aim and the intrinsic criterion of all politics…The State must inevitably face the question of how justice can be achieved here and now. But this presupposes an even more radical question: what is justice? The problem is one of practical reason [rationem practicam]; but if reason is to be exercised properly, it must undergo constant purification…Here politics and faith meet. Faith by its specific nature is an encounter with the living God – an encounter opening up new horizons extending beyond the sphere of reason. But it is also a purifying force for reason itself…Faith enables reason to do its work more effectively and to see its proper object more clearly. This is where Catholic social doctrine has its place: it has no intention of giving the Church power over the State. Even less is it an attempt to impose on those who do not share the faith ways of thinking and modes of conduct proper to faith. The Church’s social teaching argues on the basis of reason and natural law, namely, on the basis of what is in accord with the nature of every human being. It recognizes that it is not the Church’s responsibility to make this teaching prevail in political life. Rather, the Church wishes to help form consciences in political life and to stimulate greater insight into the authentic requirements of justice as well as greater readiness to act accordingly, even when this might involve conflicts with situations of personal interest. Building a just social and civil order, wherein each person receives what is his or her due, is an essential task which every generation must take up anew. As a political task, this cannot be the Church’s immediate responsibility. Yet, since it is also a most important human responsibility, the Church is duty-bound to offer, through the purification of reason and through ethical formation, her own specific contribution towards understanding the requirements of justice and achieving them politically…A just society must be the achievement of politics, not of the Church. Yet the promotion of

183 Ibid, §28.

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justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply.184 [emphasis added]

Complementary to the State’s duty to pursue justice is the Church’s “service of love”

which can provide what is outside of the State’s ability, namely “loving personal

concern.” This love does not simply offer material help, “but refreshment and care for

their souls, something which often is even more necessary than material support. In the

end, the claim that just social structures would make works of charity superfluous masks

a materialist conception of man: the mistaken notion that man can live “by bread alone”

(Mt 4:4; cf. Dt 8:3) – a conviction that demeans man and ultimately disregards all that is

specifically human.”185 Benedict goes on to emphasize what has been noted above,

namely, the Church’s indirect duty of purifying reason through the building up of faith

and moral formation of individuals:

We can now determine more precisely, in the life of the Church, the relationship between commitment to the just ordering of the State and society on the one hand, and organized charitable activity on the other. We have seen that the formation of just structures is not directly the duty of the Church, but belongs to the world of politics, the sphere of the autonomous use of reason. The Church has an indirect duty here, in that she is called to contribute to the purification of reason and to the reawakening of those moral forces without which just structures are neither established nor prove effective in the long run.186 [emphasis added]

Within a subsequent subsection entitled The distinctiveness of the Church’s charitable

activity, Benedict reminds his readers that,

Christian charitable activity must be independent of parties and ideologies. It is not a means of changing the world ideologically, and it is not at the service of worldly stratagems, but it is a way of making present here and now the love which man always needs… When we consider the immensity of others' needs, we can, on the one hand, be driven towards an ideology that would aim at doing what God's governance of the world apparently cannot: fully resolving every problem. Or we can be tempted to give in to inertia, since it would seem that in any event nothing can be accomplished. At such times, a living relationship with Christ is decisive if we are to keep on the right path, without

184 Ibid. 185 Ibid. 186 Ibid, §29.

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falling into an arrogant contempt for man, something not only unconstructive but actually destructive, or surrendering to a resignation which would prevent us from being guided by love in the service of others. Prayer, as a means of drawing ever new strength from Christ, is concretely and urgently needed. People who pray are not wasting their time, even though the situation appears desperate and seems to call for action alone. Piety does not undermine the struggle against the poverty of our neighbors, however extreme. In the example of Blessed Teresa of Calcutta we have a clear illustration of the fact that time devoted to God in prayer not only does not detract from effective and loving service to our neighbor but is in fact the inexhaustible source of that service. In her letter for Lent 1996, Blessed Teresa wrote to her lay co-workers: “We need this deep connection with God in our daily life. How can we obtain it? By prayer.”187 [emphasis added]

Ultimately, these reflections distinguishing between the Church’s sphere of charitable

action towards individuals and the State’s aim of justice carried out by individuals who

must so be morally and intellectually formed, serves to highlight the theoretical error of

those who, like Sr. Helen, seek to direct charity as a remedy for perceived “systems of

oppression,” thereby neglecting the primary duties and proper objects of charity itself.

The Church has perennially resisted utopian campaigns that dream of bringing into

harmony the two cities within which her members must abide simultaneously, thereby

preserving the light which guides man beyond the veil of this present darkness. Benedict

concludes,

Faith, hope and charity go together. Hope is practiced through the virtue of patience, which continues to do good even in the face of apparent failure, and through the virtue of humility, which accepts God's mystery and trusts him even at times of darkness. Faith tells us that God has given his Son for our sakes and gives us the victorious certainty that it is really true: God is love! It thus transforms our impatience and our doubts into the sure hope that God holds the world in his hands and that, as the dramatic imagery of the end of the Book of Revelation points out, in spite of all darkness he ultimately triumphs in glory. Faith, which sees the love of God revealed in the pierced heart of Jesus on the Cross, gives rise to love. Love is the light—and in the end, the only light—that can always illuminate a world grown dim and give us the courage needed to keep living and working. Love is possible, and we are able to practice it because we are created in the image of God. To experience love and in this way to cause the light of God to enter into the world—this is the invitation I would like to extend with the present Encyclical.188

187 Ibid, §31, 36. 188 Ibid, §39.

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Conclusion

Returning to and concluding the particular consideration at hand, while on the

surface it may seem that an allowance of the State to exact capital justice is to forgo the

higher call of merciful love, a renewed understanding of the doctrine of the Two Cities,

with its implications of man’s dual citizenship and the distinction of goods and ends

before him, can shed much needed light upon what is increasingly a highly charged and

emotionally clouded issue, even in the minds of those entrusted with teaching the faithful.

As with Sr. Helen, Chuck Colson, the founder of Prison Fellowship Ministries, has first

hand and extensive experience with the prison culture, and has personally grappled with

the issue of capital punishment. But unlike Sr. Helen, Colson, only recently, and after a

long process of wrestling with both the theoretical and practical implications, has come to

a position of principled and practical support. An extended excerpt from his personal

statement, forged as it was through such an intimate and prolonged involvement on the

front lines, is a cogent antidote to the passionate but theoretically confused prose of

abolitionists, prudential or otherwise, such as Sr. Helen and the prelates who effectively

echo her sentiments. Commenting on the necessity, as he has come to see it, of a

prudential political policy of severe mercy, and the Christian community’s responsibility

in upholding the distinction of roles involved, Colson writes,

I am coming to see that mercy extended to offenders whose guilt is certain yet simply ignored creates a moral travesty which, over time, helps pave the way for collapse of the entire social order. This is essentially the argument of Romans 13. Romans 12 concludes with an apostolic proscription of personal retribution, yet St. Paul immediately follows this with a divinely instituted prescription for punishing moral evil…It is for eminently social reasons that "the authorities" are to wield the sword, the ius gladii: due to human depravity and the need for moral-social order the civil magistrate punishes criminal behavior. The implication of Romans 13 is that by not punishing moral evil the authorities are not performing their God-appointed responsibility in society. Paul's teaching in Romans 13 squares with his personal experience. Testifying before Festus,

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the Apostle certifies: "If...I am guilty of doing anything deserving death, I do not refuse to die." While we take no pleasure in defining the contours of this difficult ethical issue, the Christian community nevertheless is called upon to articulate standards of biblical justice, even when this may be unpopular. Capital justice, I have come to believe, is part of that non-negotiable standard.

A moral obligation requires civil government to punish crime, and consequently, to enforce capital punishment, albeit under highly restricted conditions. Fallible humans will continue to work for justice. But fallible as the system might be, part of the Christian's task is to remind surrounding culture that actions indeed have consequences - in this life and the life to come. 189 [emphasis added]

As stated at the beginning, the intent of this work was not to present a partisan

defense of capital punishment, but rather to clarify the Church’s traditional understanding

of the Imago Dei and its relation to modern notions of human dignity, as well as

reemphasize the importance of the classical doctrine of the Two Cities. Such a

restorative defense is hoped to have demonstrably drawn out the implications of these

doctrines with respect to debates currently underway as to the questionable prudence and

wisdom of relatively recent incorporations of the transposed language of human dignity –

in particular as it has been enlisted in respect to the state’s right to exact capital

punishment – so as to defend both the wisdom and prudence to constitutionally retain

this right, not in a spirit of vengeance, but “with all the solemnity of the law, for they have

violated the most solemn of the laws.”190 As we have seen, by the very nature of criminal

justice systems with the manifold particulars necessarily involved, and given the

Church’s consistent teaching that capital punishment exacted by the state is not per se

malum, it is concluded that while there may well be a prudential wisdom inherent in the

relatively recent trends in pastoral condemnations of this penalty since Evangelium Vitae,

189 Colson, “Capital Punishment: A Personal Statement.” 190 Walter Berns, “Where Are the Death Penalty Critics Today?” The Wall Street Journal, June 11, 2001.

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such a claim is not self-evidently definitive nor magisterially infallible, and can arguably

be seen rather as an understandable reaction to “the bloodiest century,” as well as a result

of the influence of contemporary secular humanist sensibilities. There are in fact, as have

been offered herein, many sound and weighty considerations and arguments to the

contrary which invite further clarification and dialogue, involving a return to “first

principles,” both natural and revealed, so that unbelievers and believers alike, who

admirably seek to defend human dignity, might face the moral challenges of the 21st

century upon a more firm and lasting foundation.

As previously referenced, Lumen Gentium recognizes as preeminent among the

tasks of bishops the formation of the faithful morally, spiritually and intellectually in the

objective and saving truth of the transpolitcal, redemptive gospel.191 Christianity’s

enduring strength lies precisely in both the sublimity of its revealed transpolitical

teleological emphasis, and its ‘down to earth’ respect for the autonomous integrity

possessed by the temporal sphere of natural-political orders. No amount of external

social justice activism aimed at changing the system can secure just rule over a people

who have ceased to be formed as capable of ruling over themselves under God. In the

absence of any definitive extraordinary magisterial declaration, the debate as to the

ultimate prudence of pastoral enjoinders for abolition of the death penalty remains open.

It is the author’s opinion that American bishops would do well to focus their pastoral

191 “The early Christians fought bitter battles over the Trinity or the union of the two natures of Christ. Their late twentieth-century counterparts prefer to talk about things that have rather more to do with the needs of the body. It is a sure “sign of the times,” to use one of their favorite expressions, that the Catholic bishops of this country have poured huge sums of time, energy and money into the study of nuclear warfare and the American economy…at the risk of giving the impression that they regard these matters as more important than the ones that pertain to the good of the soul. It would have astonished our predecessors to be told by religious authorities that mere life is the greatest good and the one that must be protected at all cost.” Fr. Ernest L. Fortin, Human Rights, Virtue and the Common Good: Untimely Meditations on Religion and Politics, (Lanham: Rowman & Littlefield Publishers Inc., 1996), 9.

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energies on cultivating human excellence through a focused restoration of integrity to the

catechetical programs and educational institutions directly under their jurisdiction, as

well as fostering holiness through an enriched deepening of liturgical life in the hearts of

their dioceses, rather than issuing decrees in judgment upon the constitutional and

prudential political realm of the civitas hominis.

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