Justice Scalia (and Others): Take Note!

[I know this is long, but it is undeniably worth reading in full, and I wanted to make it easy to do so.]

Church opposition to execution 'practically' absolute

     

All Things   Catholic by John   L. Allen, Jr.
	Friday, Jan. 5, 2007 - Vol. 6, No. 18

In 1998, Pope John Paul II issued a document titled Ad Tuendam Fidem, which generated no small amount of discussion by underlining a second category of infallible teachings, i.e., doctrines not formally revealed but regarded as necessary to safeguard and defend revelation. In an accompanying commentary, then-Cardinal Joseph Ratzinger cited the ban on women priests and the invalidity of Anglican ordinations as examples.

Without entering into the details of that debate, suffice it to say that Ad Tuendam Fidem signaled an unambiguous stance from the Catholic church on certain matters previously regarded in some circles as in flux, or at least open to further review.

In analogous fashion, one could argue that the reaction from the Vatican and from senior Catholic officials around the world to the Dec. 30 execution of Saddam Hussein, and its broader opposition to the war in Iraq in the first place, collectively mark a milestone in the evolution of yet another category in Catholic teaching: Positions which are not absolute in principle, but which are increasingly absolute in practice. Opposition to war, unless undertaken in clear self-defense or with the warrant of the international community, and the use of capital punishment are the leading cases in point.  In effect, recent Vatican interventions on matters such as the Hussein execution suggest the Catholic church now has two categories of moral teachings: what we might call "ontic" or "inherent" absolutes, such as abortion, euthanasia, and the destruction of embryos in stem cell research, which are considered always and everywhere immoral because of the nature of the act, and "practical" absolutes, i.e., acts which might be justified in theory, but which under present conditions cannot be accepted.

On Dec. 30, Jesuit Fr. Federico Lombardi, the Vatican spokesperson, issued the following statement on Hussein's execution:

"Capital punishment is always tragic news, a motive of sadness, even when it's a case of a person guilty of grave crimes. The position of the Catholic church against the death penalty has been confirmed many times. The execution of the guilty party is not a path to reconstruct justice and to reconcile society. Indeed, there is the risk that, on the contrary, it may augment the spirit of revenge and sow seeds of new violence. In this dark time in the life of the Iraqi people, it can only be hoped that all the responsible parties truly will make every effort so that, in this dramatic situation, possibilities of reconciliation and peace may finally be opened."

Other reactions from senior church officials confirmed this judgment.

I spoke to a senior Vatican diplomat on Jan. 2, who told me that there had not been a private appeal to save Hussein's life from the pope prior to the execution, largely because there was no time. As late as Thursday and Friday of last week, this official said, the Vatican still hoped that a 30-day waiting period prior to any use of the death penalty prescribed in Iraqi law would be observed. In the end, this official said, the execution happened with "barbaric rapidity."

L'Osservatore Romano, the Vatican newspaper, editorialized that "making a spectacle" of the execution turned capital punishment into "an expression of political hubris." Hussein's death, the paper claimed, "represented, for the ways in which it happened and for the media attention it received, another example of the violation of the most basic rights of man."

Church officials offered several motives for opposing the execution.

First, there's the principled argument that the right to life must always be upheld. This point was made in a Dec. 30 interview in Ansa, the Italian news agency, with Cardinal Renato Martino, President of the Pontifical Council for Justice and Peace.

"Man cannot simply dispose of life, and therefore it should be defended from the moment of conception to natural death," Martino said. "This position thus excludes abortion, experimentation on embryos, euthanasia and the death penalty, which are a negation of the transcendent dignity of the human person created in the image of God."

Note that Martino listed capital punishment on a par with key life issues long understood to admit of no exceptions.

Martino's comments echoed an appeal made in June by French Cardinal Paul Poupard, President of the Councils for Culture and for Inter-religious Dialogue, who asked that Hussein's life be spared on the grounds that "every person is a creature of God, and no one may regard himself or herself as owner of the life or death of another except the Creator."

Second, church officials suggested that motives other than application of an impartial judicial process were at work.

"Justice was obviously not the only factor in this story," said Archbishop Jean-Marie Sleiman, the Latin Rite archbishop of Baghdad. Sleiman and others hinted that tribal and political animosities were also part of the picture, an impression reinforced by images of Shi'ites in the execution party shouting the name of Muqtada al-Sadr, who heads a powerful Shi'ite clerical dynasty and commands the loyalty of the insurgent Mahdi Army.

Third, church officials warned that killing Hussein would make the process of pacification in Iraq more difficult.

"The death of Saddam can without doubt create a new obstacle for the process of national reconciliation, which was already experiencing serious difficulty," Sleiman said.

Fourth, some officials hinted that the execution of Hussein could unleash new violence in Iraq which might fall in disproportionate fashion upon its small Christianity community, seen by some Islamic radicals as a beachhead of Western influence (despite the fact that Christianity actually has more ancient roots in Iraq than Islam).

Iraq's Ambassador to the Vatican, Albert Edward Yelda -- who supported Hussein's execution -- gave voice to those concerns on Saturday.

"In contrast to other ethnic or religious groups, the Christians [inIraq] are isolated and totally abandoned. They have only themselves, Jesus Christ and God to whom they can appeal," Yelda said. "The international community should make every effort to direct attention to them, who form a peaceful community that has always rejected violence."

Though Pope Benedict XVI did not specifically comment on the Hussein execution, he delivered a strong appeal for respect of human rights in his Dec. 31 homily in St. Peter's Basilica.

"Every human, without distinction of race, culture or religion, is created in the image and likeness of God, he is filled with the same dignity of person," the pope said.

Nowhere in Vatican commentary was there a concession that the church's position on the death penalty is not absolute, nor any indication that it's up to the secular authorities rather than religious leaders to make this sort of decision in concrete circumstances. Instead, the tone was of clear moral condemnation, suggesting that as a practical matter, the execution of Hussein -- or of anyone in this day and age -- is unambiguously wrong.

* * *

None of this means, of course, that the emerging category of "practical absolutes" is uncontroversial.

The church's teaching on both the death penalty and on war is rooted in its doctrine on self-defense: If someone intends to kill you, you're entitled to defend yourself, including lethal force if that's the only option. By way of extension, if the only way to protect innocent people in society from aggressors, whether criminals or invading armies, is to use lethal force, then that does not constitute "murder." In paragraph 2267, the Catechism of the Catholic church offers the following on capital punishment, reflecting this position:

"Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor."

Yet the Catechism also immediately adds what the Italians call a sfumatura, meaning a nuance, which effectively renders the "self-defense" argument null under prevailing circumstances:

If, however, non-lethal means are sufficient to defend and protect people's safety, 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 to the dignity of the human person. Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm -- without definitely taking away from him the possibility of redeeming himself -- the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically nonexistent.'"

The citation at the end is from Pope John Paul II's 1995 encyclical Evangelium vitae, "The Gospel of Life," which was issued in 1995, three years after the original publication of the Catechism in French in 1992. When an official Latin text of the Catechism was issued five years later, the inclusion of this citation was among the few substantive revisions.

The fact that neither the death penalty nor war (for reasons other than what John Paul called "humanitarian intervention") are considered "ontic" evils probably means there will always be room for differing opinions in the church about the extent to which existing circumstances render them justifiable.

For example, in a recent interview with me, Cardinal Avery Dulles said he would prefer a more "traditional" position on the death penalty than that espoused by John Paul II. (Dulles laughed that the pope's record on such issues, among other things, illustrates the emptiness of media labels of John Paul as a "conservative.") While Dulles said capital punishment should be used "sparingly" and only "with absolute certainty of guilt," he argued that in some cases it's justified, and that such a permissive stance is more consistent with the church's tradition. Dulles added that he would say much the same thing about "just war" theory.

The Community of Sant'Egidio, meanwhile, one of the "new movements" in the Catholic church, on Tuesday reaffirmed its call for a global moratorium on capital punishment.

"It's not a deterrent, it does not reduce the number of crimes, but it lowers the state to the level of those who kill, and it affirms a culture of death at the highest level," said Mario Marazitti, a Sant'Egidio spokesperson. "In totalitarian regimes, it's a terrible instrument of oppression that strikes the cultural, political, religious, social and ethnic opposition. In democratic countries, it's stained by terrible social discrimination, striking in a disproportionate manner ethnic and social minorities, the most marginal elements of the population."

The nature of a "practical absolute," which rests on a reading of social conditions rather than the pristine purity of abstract logic, means that such divergent positions can likely never be reconciled at the level of theological theory. Those fractures are likely to run especially deep in the Catholic community in the United States, one of the few developed nations which use capital punishment, and the country that has taken the lead role in the war against terrorism.

Nevertheless, indications from the Vatican and from a wide swath of Catholic officialdom suggest that in practice, it's unlikely there will ever again be a war (defined as the initiation of hostilities without international warrant) or an execution the church does not officially oppose.

At the level of application, at least, it would seem the debate is almost over, and the abolitionists are winning.