Making Clear Distinctions Between Abortion and the Death Penalty

Notre Dame philosophy professor, John O'Callaghan, rightly takes me to task for some of my recent posts, which contain an ambiguity concerning the Church's teaching on abortion and the death penalty. Here is his letter:

Dear Mike:

I don’t know what to think about the question of “illicit” and “licit” cooperation in evil and voting that you have raised on the Mirror of Justice. However, I am troubled by the analogy being drawn between the death penalty and abortion. You are by no means the only person to draw this analogy. But I think it is a fundamentally mistaken analogy, and muddies the water of the larger issue of voting that you are trying to pursue, as well as the larger question of the responsibilities of Catholics who are directly involved in the formation of public policy and law. I am by no means infallible, and so am willing to be corrected on anything that follows.

The Catholic teaching against abortion is a teaching concerning the kind of action involved, namely, that in its kind abortion is bad. According to the teaching of Veritatis Splendor, insofar as it is bad in its kind, no individual act that falls under that kind may be done. Veritatis Splendor describes three central factors in considering the goodness of a particular act, its Kind, its Circumstances, and
its Goal or End. There is a fundamental asymmetry in the evaluation of acts bad in their kind versus acts good in their kind. While a particular act good in its kind can be rendered bad in particular by circumstances or goals, an act bad in its kind cannot be rendered good in particular by its circumstances or goals. The Pope gives acts of torture as one example of acts bad in their kind. No particular circumstances or goals can make a particular act of torture good, because it is bad in its kind. On the other hand, while marital intercourse is good in its kind, a particular act can be bad because done before an audience, for example.

Considering the two other categories of moral evaluation that the Pope described in Veritatis Splendor, Circumstances and Goal or End, the point of recognizing that abortion is bad in its kind is that no circumstances and no goals can ever justify a particular act of abortion and render it a good act despite its being bad in kind. Because it is a teaching about the very nature of the act, Catholics are obliged to maintain it as true as falling under the authority of the Church and the Pope to teach on matters of faith and morals, and despite the fact that the Church maintains that it can be known as a deliverance of the natural law.

On the other hand, the Pope’s recent teaching in Evangelium Vitae, reaffirmed in the Catechism, on the death penalty is not of that order. Insofar as he recognizes that the death penalty may be used in what he judges to be extreme circumstances to protect society, he is making a judgment about circumstances and goals or ends. But given the threefold analysis in Veritatis Splendor of Kind, Circumstance, and Goal or End, that judgment of circumstances and goals or ends implies that the death penalty is good in its kind, since being good in its kind is a necessary condition for any particular act to be good in a particular set of circumstances and for particular goals. No circumstances and no ends can make good an act that is not good in its kind. In fact, the Pope reaffirms this traditional teaching of the Church on the death penalty when he writes that the primary function of the death penalty is punishment, not self-defense. Self-defense, a good goal, cannot make just an act that is unjust as punishment.

Part of the confusion that is bred by most politicians and others constantly drawing political analogies between Church teaching on abortion and Church teaching on the death penalty is the failure to recognize this reaffirmation of the traditional teaching. The Pope is not saying, thank God, that “the death penalty is an evil means that one may do in extreme circumstances in order to achieve some good end.” Strange as it sounds in the present rhetorical climate of the West, he is saying that the death penalty is a just means of punishment that one should refrain from using because of the bad circumstances in which and bad goals for which it would be applied in our Culture of Death.

But then the question is, what is the nature of the teaching, and what are the responsibilities of Catholics towards it? It is prudential counsel about the application of a general moral norm of punishment to particular circumstances and political goals. The crucial feature for faithful Catholics is that while, as an expression of their virtue of faith, they should pay particular and special attention to such counsel from the Pope, it is not the kind of judgment that the virtue of faith dictates they must adhere to as binding.

Insofar as the application of the death penalty requires a judgment of prudence, the question is with whom does the authority to make the prudential judgment reside? In most cases, the authority to make that prudential judgment does not reside with the Pope. According to the Pope in Evangelium Vitae and reaffirmed in the Catechism it lies with the person who holds the executive power to care for the common good of a particular political community. The Pope’s prudential counsel is no substitute for the executive’s prudential judgment. And, a central feature of prudential counsel, whether it comes from me or from the Pope, is that it cannot bind beforehand a prudential judgment. Because he is the Pope Catholics are bound to give his prudential counsel more consideration and respect than the prudential counsel of pretty much everyone else. But he does not have the authority to make the prudential judgment that is within my sphere of authority. The reason he doesn’t has to do with the very nature of prudence. The authority to make a prudential judgment rests with the one or one’s who have the power and responsibility to carry out or refrain from the proposed good act. And in the case of the death penalty the Pope lacks that power. Were he to claim it, he would violate, among other things, the teaching of the Second Vatican Council on the dignity and responsibility of lay persons acting in the world.

There is a logical point here as well. As statements, counsels of prudence themselves can only be of general logical form. They cannot be statements specifying exact particulars, since as counsels of prudence they precede any possible particular circumstances to which they would be applied, and thus a fortiori the range of possible particular circumstances do not exist and cannot be precisely specified to every “jot and tittle.” Newman made this point defending the Doctrine of Papal Infallibility in his Letter to the Duke of Norfolk against Gladstone’s charge that English Catholics could no longer be considered faithful citizens of the throne because in all their actions they were now under the command of a foreign potentate. “Plus ca change…”

Evidence that the Pope intends his teaching to be taken to be prudential counsel is found in the encyclical Evangelium Vitae itself in the mode of expression given to it. Lumen Gentium #25 (I think), speaking of the “obsequium” due to papal teaching indicates that the level and range due such will be evident from the particular character and mode of expression of the teachings in question. While the Pope expressed his statements on both abortion and euthanasia by prefacing them with, if memory serves, “I as Peter, and in consultation with the bishops throughout the world, reaffirm the constant and universal teaching of the Church that…,” he did not preface his statement on the death penalty that way. Instead, he prefaced it with, if memory serves, the claim that “there is a general consensus forming within the Church and within society at large that…” He does not claim the “authority of Peter” as he did for abortion and euthanasia. Even if one in fact agrees with the teaching, one is not bound to do so as a matter of faith about a forming “general consensus within the Church and society at large.” The latter is little more than an empirical sociological generalization that may prove empirically false. Indeed in the United States there is very good evidence that it is false. As an empirical claim one has to extend the boundaries of society fairly broadly, and yet be fairly selective in excluding certain societies, to make it true for the most part.

In the end the analogy you draw muddies the waters because it implicitly misrepresents the nature of the teaching about the death penalty, and may confuse others about how to consider a candidate’s position on the death penalty in deciding whether to vote for him or her. I agree with the Pope’s teaching concerning the death penalty as expressed in Evangelium Vitae. I do not do so on the basis of a questionable empirical sociological claim. It came as no surprise to me, as I recognized it to be what I was raised to think about the death penalty, by my parents 25 years prior to the appearance of the encyclical, and which I continue to hold to this day. I was raised to think so even if the “consensus” of the entire world was against my holding it. I wholeheartedly support it, and urge my fellow Catholics to do so as well. But we should oppose its use for the right reasons. Given what that teaching is, it does not pose an obstacle for me to vote for a candidate who favors the death penalty as a form of punishment, since that is what the Church teaches is its good. I may judge that this or that particular candidate has been particularly vicious in the circumstances of his exercise of that punishment, or I may judge that the goals for which he or she exercises it are base, and these judgments may give me prudential reasons to vote against him or her. I may even judge that given corrupt circumstances and given the corruption of social and political goals, the death penalty should be entirely outlawed. But as I see it, a candidate’s simple support for the death penalty as a kind of punishment is not inconsistent with, but, rather, consistent with Catholic teaching on it. Political support for abortion is quite different as it involves the political support for the act of killing innocent human beings, a kind of act that is intrinsically bad, that is, bad in its kind.

As Catholics we do not want to get into bed with those who think the death penalty is unjust or evil and yet think it can be done for suitably expedient reasons. Those are the same types of people who think one can torture others to get useful information in extreme situations. They are also akin to those politicians who are “personally opposed to abortion,” i.e., think that it is wrong, and yet think that it may be done for a good enough reason. On the contrary, it is my understanding of Catholic teaching on the death penalty that it is an act good in its kind that we may and perhaps now should refrain from. One may not do evil, but one may tolerate it to avoid a greater evil. Support for a candidate in favor of the death penalty does not as such involve the toleration of evil. Support for a candidate in favor of abortion does. The burden of proof is upon the one who urges us to tolerate evil.

Yours,

John