I was teaching a course on American law in Rome recently, and my students asked about the presidential candidates and where they stood on abortion. In passing, I mentioned some of the pro-life achievements of President Bush. This provoked a French African priest to ask a question or, perhaps, really to make a statement: he wanted to argue that it is more important to be against the death penalty and against the war in Iraq than it is to be against abortion.
Indeed, in much of Europe and the United States that is a common view. But he was obviously wrong, as I and others pointed out. And the reason why is easy to grasp simply by consulting The Catechism of the Catholic Church. It discusses all three – abortion, war, and capital punishment – and designates only one of them as always and everywhere wrong: abortion. In other words, the Church teaches that sometimes it is morally permissible to take life during war and sometimes to do so after legal due process by execution; but never to do so by abortion.
The Church, of course, has careful and detailed teaching on when a war is just and when capital punishment is permissible. Nonetheless, the teaching on capital punishment in the Catechism (that it is only permissible in societal self-defense) has provoked a firestorm of controversy among faithful Catholics.
A very interesting entry into this debate comes in a law review article by my good friend, Father Kevin Flannery, S.J., who teaches philosophy at the Gregorian University in Rome and with whom I was lucky to have dinner on my recent trip. (The article appears in volume 5, number 2 of The Ave Maria Law Review, 2007, and is entitled “Capital Punishment and the Law.”)
Flannery engages in a careful critique of the Catechism’s statements regarding the death penalty. He does so by reference to Aristotle, Aquinas, and Catholic history. The burden of his elaborate, but clearly developed, argument is that the Catechism is simply mistaken in many of the points it makes about capital punishment, at least as an historical matter.
Flannery notes that the Catechism cites two sentences from Thomas Aquinas in support of its statement: “The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing.” Those two sentences are the classic invocation of the principles of double effect, “The act of self-defense can have a double effect: the preservation of one’s own life, and the killing of the aggressor,” and “Nothing prevents one act from having two effects, of which one is within the intention, the other beside the intention.”
However, Flannery points out, “Aquinas does not resolve the issue of public self-defense by appeal to a double-effect.” That argument he reserves for private self-defense. His justification for the exercise of lethal force by the sovereign (state) is otherwise, and directly contrary to what the Catechism suggests (and follows directly, in Aquinas’ writings, upon the two sentences quoted therein): “But as it is illicit to take a man’s life, except for the public authority acting for the common good…it is illicit for a man to intend killing a man in self-defense, except for such as have public authority….” Flannery thus concludes, and it is hard to see how he could be mistaken: “Aquinas says as clearly as one could want that a public authority can legitimately intend to kill a person who threatens the well-being of society.”
In other words, the principle of double-effect, relevant to individual killing in self-defense, is not relevant to the question of killing by the state. The state, and its officers, may, licitly, intend to kill. While a man may kill when he himself is threatened; the sovereign may do it “for the common good,” including “redressing disorder.”
Here is how Flannery puts it, speaking first about just war: “In a secondary sense…killing in war is according to natural law. Given the conditions of life in an imperfect world, a nation that defends itself by means of intentional killings can be acting in a perfectly natural – that is to say, ethical – way. But in the primary sense of what is natural, all killing is unnatural….We can say similar things with respect to capital punishment. Throughout the history of the Church, Catholic philosophers and theologians have said that capital punishment is licit. But they have done this without ever denying that, in a more abstract sense, any such killing goes against what is favored even by nature.”
Such clear thinking would go far in clearing up the very unclear thinking that has marked the contemporary American debate, even among Catholics.