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Capital Punishment: Eppur non si muove

Capital punishment is analogous to killing in self-defense, we are told. Some have resisted that analogy, because they misunderstand it. The analogy says, not that society can use capital punishment only when necessary to protect individuals in society, but rather, only when necessary to protect society – including justice in a society, the order in society, or any fundamental constituent of the common good of society.

(Note that I did not say, “as St. Thomas taught,” even though his discussion is so lucid. The truth of what I am saying has nothing to do with the fact that St. Thomas taught it. He taught it because it is true. I won’t even say “true by natural law” as if “natural law” were a separate authority, beyond what well-formed reason and conscience say, yours and mine.)

The reason why I can resort to killing in self-defense, is that I can rightly prefer my own good over that of another. Not that I need to prefer it. If I am a Capuchin friar, I might prefer not to defend myself, out of a free choice to represent Christ in my defenselessness.

But suppose I am a father supporting ten children – then I might be morally obliged to keep myself alive by killing that aggressor. I wouldn’t have the luxury of representing Christ through defenselessness. If self-sacrifice is what I seek, as I should, then God has already set down a path for me, the path that I chose when I said my vows: to love my wife as Christ loved the Church.

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What is left up to reasonable preference for me, may be mandated for a public official. It’s not up to the police officer whether to use lethal force when necessary to protect an innocent against an attack. He must do so. God, conscience, and his duty as a Christian all say this.

Not that it will be pretty. The ruthless bandit is poised to kill. Next moment he lies in the gutter in a pool of blood. What would Christ have done? Capuchin friars and others like that will advisably not assume positions as police officers.

But if killing in self-defense and capital punishment are analogous, then they rise or fall together, on the same grounds. If the one can be abolished, then so can the other. If the one is unavoidable in reason and conscience, then so is the other.

It is not difficult to see that there are circumstances in which a public official may actually be obliged, in reason and conscience, to execute an offender. You are on the front lines, and deserters will be punished. A law without a punishment is not a law. A punishment that cannot be applied is not a punishment.

“If bloodless means suffice, they must be used instead.” But what if bloodless means do not suffice? Then bloody means must be used. The man already in solitary confinement who finds his chance to murder the visiting physician or pastor. The revolutionary who remains a rallying point. Hans Frank, Wilhelm Frick, Julius Streicher, Alfred Rosenberg, Hermann Goering, Arthur Seyss-Inquart – you think bloodless means suffice to uphold justice? You are entitled to that minority opinion, but you cannot say that it is against reason, against conscience, to hold otherwise.

Justice with a sword [the Old Bailey, London]
I say bloody means must be used, just as the police officer must protect the innocent. Capuchin friars will advisably not wish to serve as executioners. They have been forbidden to do so by Church law. But the lay executioner does what is right and good, although necessitated.

That great servant of the public good, Thomas More, kissed his executioner, as if to bless the role: “Pluck up thy spirits, man, and be not afraid to do thy office.” It seems that this executioner, too, had not the luxury of avoiding his work: “See, my neck is very short. Take heed therefore thou strike not awry for having thine honesty” – the saint’s very last words.

Capital punishment, though, adds this over self-defense: it is necessitated morally rather than naturally or physically. Once the aggressor goes to attack you, you are on the runaway trolley, and you can’t but go right, to destroy him in saving yourself, or left, which lets him survive in destroying you. Always, not to choose is to choose, of necessity, from the nature of the thing.

But crimes once done merely “cry out to heaven” for retribution. They deserve rather than necessitate punishment. Thus, if someone were to say that killing in self-defense were excluded, he would be saying only that preferring oneself to others (when one must be preferred) is excluded.

But if someone says capital punishment is excluded, then any number of things might be implied – that private trumps public good; that public authority is null; that lawfulness survives without punishment; or even – and this is the point – that punishment does not presuppose retribution.

Indeed some people argue against capital punishment on grounds that would exclude imprisonment as well, and even the very concept of punishment.

“What is just by nature is not moveable and everywhere has the same force,” Aristotle remarked long ago. Cicero compared the immovability of natural law with the eternal, changeless motion of the heavens. Galileo, to the contrary, proved the changeability of the one with a telescope.

But in our day, when even the heavens apparently do move, we need a different sort of telescope for seeing the changelessness of the other – one that has the clear lens of reason, and the long extension of history, and which is situated in a calm and still observatory.

This exactly is what Edward Feser and Joseph Bessette provide in their recent book, By Man Shall His Blood Be Shed [2], the most comprehensive case ever assembled it. Yes, one can avoid becoming persuaded by not looking into that telescope. But if you do, you may see so clearly the unchanging nature of the question that you will quip, Eppur non si muove, “Nevertheless it does not move.”

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Michael Pakaluk, an Aristotle scholar and Ordinarius of the Pontifical Academy of St. Thomas Aquinas, is professor at the Busch School of Business and Economics at The Catholic University of America. He lives in Hyattsville, MD, with his wife Catherine, also a professor at the Busch School, and their eight children.