Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, June 16, 2004

The Death Penalty and the Doctrine of Double Effect

By Michael Scaperlanda

Can't the doctrine of double effect be used to justify the death penalty in the same way it can be used "to justify lethal acts of self-defense, lethal acts of combat in war, and the like"? Just as in the case of war, an inevitable consequence of the death penalty will be death. But if the intent of the war or of the use of the death penalty is to preserve and protect the community, then doesn't the doctrine of double effect apply equally to both situations?

It is instructive, I think, that the Catechism's discussion of the death penalty is placed in five paragraph section (2263-2267) under the subheading "Legitimate Defense." (although note that the on-line edition of the Catechism has a separate heading for Capital Punishment). Paragraph 2263 begins: "The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing." Quoting St. Thomas, it continues, "The act of self-defense, can have a double effect: the preservation of one's own life; and the killing of the aggressor. ... The one is intended, the other is not." 2265 says that "legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm." This grave duty seems to apply to self-defense, defense of family, war, police action, and the death penalty. Therefore (and again with the admission that I haven't yet read Brugger's book), it seems to me that the Church teaches that the use of the death penalty far from being morally forbidden may actually be a "grave duty" of the state, albeit under circumstances that rarely if ever arise today.

On a personal note, I was somewhat ambivilent about the death penalty until the day Timothy McViegh was sentenced to death. My sense was that far from bringing peace and closure, the sentence actually fanned the flames of hate burning (understandably) inside of many in the Oklahoma City area. Bud Welch, a humble gas station owner, stood as a sign of contradiction. Racked by the pain of losing his only daughter, Julie (to read more about Julie and two other young Catholics who died in the bombing, click here or here), this former supporter of the death penalty has devoted his life to reconciliation - visiting Timothy McVieghs father - and to seeking the abolition of the death penalty. Through Bud's example, I have come to understand why the Church teaches that the use of non-lethal means of punishment "are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person."

Tuesday, June 15, 2004

Reply to Michael Scaperlanda

By Michael Perry

Michael S. and I must have been posting messages at about the same moment. Actually, I was posting a revised version of my capital punishment message of last week. Please take a look at the revised message, which I drafted after an e-mail conversation with Notre Dame philosophy prof John O'Callaghan, to whom I am grateful.

Now, in response to Michael's questions.

1. As Brugger, in his book, carefully explains, one can sometimes rely on the doctrine of double effect to justify lethal acts of self-defense, lethal acts of combat in war, and the like. This is because one can (and should) engage in such acts without the intent to kill. However, to execute someone under a system of capital punishment is to kill him not merely with foresight, but intentionally. So, one can affirm the principle that it is morally forbidden in principle to kill any human being, innocent or not, without committing oneself to pacifism. As I said, Brugger discusses all this very carefully.

2. To conclude that an act is morally forbidden "in principle" is to conclude that it is morally forbidden for anyone ever to engage in the act, no matter what the circumstances. It would be not merely confusing but deeply confused for the Church or anyone else to teach that an act is morally forbidden in principle but that there may be circumstances--extreme circumstances--in which it would not be morally forbidden for someone to engage in the act.

I want to emphasize that I have not said, in my postings, that I agree--or that I disagree--with the position that it is morally forbidden in principle to kill any human being, innocent or not. I am still struggling to arrive at what I judge to be the most adequate position on capital punishment--the most adequate position, that is, even assuming that a system of capital punishment could be devised that would function perfectly: a system in which no innocent person would be executed, the rich would be just as likely to be executed as the poor, those whose victims are black would be just as likely to be executed as those whose victims are white, and so on.

Journal of Catholic Social Thought Symposium Issue on CST and the Law

By Rick Garnett

I am happy to announce that the first annual symposium issue of the Journal of Catholic Social Thought on the topic of CST and the Law has just been published (Volume 1:2, Summer 2004). Naturally we're very proud of this publication here at Villanova. The issue includes articles by MOJ blogistas Steve Bainbridge, Kathy Brady, Vince Rougeau, Mark Sargent, Mike Scaperlanda, Amy Uelmen and Rob Vischer, as well as other luminaries. The articles focused on a variety of broad theoretical issues as well as specific applications of CST in constitutional law, torts, corporate law, immigration, labor law and other areas. For the table of contents, please check the Journal's web page at the Journal Of Catholic Social Thought site listed in our Links section to the lower left.
Our second CST & the Law symposium will be held here at Villanova on October 8 on the topic of "Principles and Practices of Subsidiarity." Panels will include discussions of the relevance of subsidiarity in the liberal state, the bureaucratic state, federalism, international law and corporate governance. Speakers will include MOJ blogistas Paolo Carozza and Rob Vischer as well as others from the US, UK and Italy. I will post an agenda and conference info once they are finalized.
I will conclude with a plug: ask your librarians to subscribe to the Journal! Please note - they can't subscribe to the law issue only - but the other issues will include articles by law profs, because the journal is genuinely interdisciplinary, so they should feel comfortable having it in the library.

-Mark

A Death Penalty Question for Michael Perry

By Michael Scaperlanda

Michael Perry's interpretation of John Paul II's teaching on the death penalty posted a few days ago is at odds with Notre Dame philosophy professor John O'Callaghan's interpretation, which was posted last month.

I hope to get to Brugger's book, which Michael suggests, later this summer. For now, I'll weigh in with questions for Michael (and others) and a comment. Can it truly be the teaching of the Church that "[i]t is morally forbidden for anyone to kill any human being intentionally?" Michael says that "[s]uch killing is 'in principle' morally forbidden." If this is the Church's teaching, it has ramifications far beyond the death penalty, requiring a reexamination of questions on war, self-defense, and policing.

Michael, are you suggesting that war, killing in self-defense, killing (by police) to protect the community, and the death penalty are inherently moral evils? Are you further suggesting that Church teaches that we (the state in this instance) is sometimes allowed to carry out an evil act if it serves the greater good? Or, are you sticking to the traditional Catholic teaching that forbids the doing of an evil act no matter what good may come? If the latter, are you suggesting that the Church now teaches personal and governmental pacifism in the face of grave danger? Could you clarify this for us?

Paragraph 2267 of the Catechism (2d ed. 1997) states that "[a]ssuming 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. If, however, 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 common good and more in conformity with the dignity of the human person." This language suggests to me that the death penalty is not morally forbidden "in principle" or otherwise but remains a legitimate part of a governments aresnal for protecting the community against wrongful aggressors. Given our current circumstances - the ability to protect ourselves without inflicting the death penalty coupled with a culture that lacks respect for the human person (the culture of death), the Church is very strongly suggesting that the common good is better served when the state imposes an alternative sentence. Although the Catechism says that "the cases in which the execution of the offender is an absolute necessity 'are very rare, if not practically non-existent,'" it does not, on my reading, come close to suggesting that the "[i]t is morally forbidden for anyone to kill any human being intentionally."

I look forward to hearing replies from Michael and others.

Pax, Michael Scaperlanda

Newdow and Parental Rights

By Rob Vischer

Most (but not all) religious folks have breathed a sigh of relief now that the Supreme Court has allowed "under God" to remain in the pledge of allegiance, if only for the time being. However, I haven't seen much attention paid by religious folks to the standing analysis on which the Court's ruling was based. In essence, Justice Stevens' majority opinion suggests that noncustodial parents have very limited power over their children's religious upbringing:

. . . Newdow requests relief that is more ambitious than that sought in [the previous California cases Mentry and Murga]. He wishes to forestall his daughter's exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree. The California cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion. Mentry and Murga are concerned with protecting " 'the fragile, complex interpersonal bonds between child and parent,' " 142 Cal. App. 3d, at 267, 190 Cal. Rptr., at 848, and with permitting divorced parents to expose their children to the " 'diversity of religious experiences [that] is itself a sound stimulant for a child,' " id., at 265, 190 Cal. Rptr., at 847 (citation omitted). The cases speak not at all to the problem of a parent seeking to reach outside the private parent-child sphere to restrain the acts of a third party. A next friend surely could exercise such a right, but the Superior Court's order has deprived Newdow of that status.

In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing. When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. There is a vast difference between Newdow's right to communicate with his child--which both California law and the First Amendment recognize--and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.

This reasoning makes a certain amount of sense to me, but I'm wondering if its application and certain extension by lower courts could cause problems. After all, in the Church's view, "[t]he task of educating belongs fundamentally and primarily to the family." (Instruction on Christian Freedom and Liberation para. 94) Does a parent's loss of legal custody diminish his share of responsibility for the child's education, or deprive him of moral standing to assert claims on behalf of the child's well-being? Is his cognizable interest really limited to what occurs within "the private parent-child sphere?" Are we comfortable with the Supreme Court drawing legal distinctions between a parent's "right to communicate with his child" and his right to "shield his daughter from influences to which she is exposed?" Maybe this is an acceptable outcome to this particular case, and I certainly think that, for prudential reasons, a custodial parent may need to have a greater legal voice in the upbringing of the child, but it seems that there may be factual scenarios where this reasoning will come back to haunt those who favor robust parental rights, not just robust custodial parental rights, in the educational sphere.

UPDATE: A reader emailed me to confirm that my concern has at least some grounding in reality. He currently is litigating on behalf of a non-custodial parent who is being denied input into the religious formation of his child, in favor of foster parents' religious formation decisions. He writes that he fully expects to see the Newdow majority's reasoning injected into the case.

Rob

Monday, June 14, 2004

Bush and the Bishops

By Rob Vischer

News reports today suggest that President Bush encouraged Vatican officials to press American bishops to speak out more on political issues. According to the New York Times:

On his recent trip to Rome, President Bush asked a top Vatican official to push American bishops to speak out more about political issues, including same-sex marriage, according to a report in the National Catholic Reporter, an independent newspaper.

In a column posted Friday evening on the paper's Web site, John L. Allen Jr., its correspondent in Rome and the dean of Vatican journalists, wrote that Mr. Bush had made the request in a June 4 meeting with Cardinal Angelo Sodano, the Vatican secretary of state. Citing an unnamed Vatican official, Mr. Allen wrote: "Bush said, 'Not all the American bishops are with me' on the cultural issues. The implication was that he hoped the Vatican would nudge them toward more explicit activism."

Mr. Allen wrote that others in the meeting confirmed that the president had pledged aggressive efforts "on the cultural front, especially the battle against gay marriage, and asked for the Vatican's help in encouraging the U.S. bishops to be more outspoken." Cardinal Sodano did not respond, Mr. Allen reported, citing the same unnamed people.

The predictable objection to this news will be cries that the line between church and state has been crossed. I don't see much merit to that, as Bush's attempt to enlist the Vatican's faith-based advocacy for his own political purposes does not seem qualitatively different than a President enlisting churches in the civil rights cause, a war against poverty, or the battle against communism. Indeed, the very premise of Charitable Choice legislation is that faith-based action will facilitate the realization of a political agenda. The only difference between those cases and the current controversy is in the perceived nobility of the particular agenda.

President Bush's attempt, however (assuming that it did occur), does seem to implicate the one-dimensional nature of certain bishops' advocacy up to this point. Why should President Bush feel confident that a more outspoken political role for American bishops will help his candidacy?

Rob

Partial Birth Abortion Trials

By Michael Scaperlanda

Transcripts of the three partial-birth abortion trials are online courtesy of the USCCB.

Saturday, June 12, 2004

Bishop Sheridan's update

By Rick Garnett

Bishop Sheridan has updated and clarified his earlier pastoral letter on the responsibilities of Catholic voters and public servants. The new letter is available here.

Rick

Revised Response to Rob on the Church and Capital Punishment

By Michael Perry

[Revised on June 15, 2004.]

This now seems to be the teaching of John Paul II on capital punishment--and it now seems to be the emergent position of the magisterium on capital punishment:

(1) It is morally forbidden for anyone ever to kill any human being intentionally--any human being, not just any "innocent" human being. Such a killing is "in principle" morally forbidden.

(2) To execute a human being under a system of capital punishment is to kill him (or her) intentionally.

(3) Therefore, it is morally forbidden--"in principle" morally forbidden--to execute a human being under a system of capital punishment.

Now, some of you will dispute this interpretation of John Paul II's teaching. After all, you'll say, the 1997 Catechism of the Catholic Church doesn't speak in such uncompromising terms. So, before you go any further, please read the book that offers and defends this interpretation: E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (Notre Dame 2003). Brugger's book was written (while Brugger was at Oxford, I think) under the mentorship of John Finnis and Oliver O'Donovan. I find Brugger's interpretation of John Paul II's teaching persuasive. And Brugger is on solid ground, I think, in arguing that this is the emergent teaching of the magisterium. In a letter to First Things in August/September 2001, commenting on a lecture by Avery Dulles, Brugger wrote:

"The new framework [of the 1997 Catechism of the Catholic Church] 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 the criminal's crime) [do not justify] the inflicting of capital punishment. That is to say, death as a punishment is never legitimate."

Of course, to say that such-and-such is the teaching of the magisterium is not to say that the teaching is "irreformable". But for a host of reasons it seems to me that if/when the magisterium affirms the change for which, according to Brugger, it "is laying a theoretical foundation," the magisterium is much less likely to change course on the teaching in, say, the next millenium than (e.g.) on its teaching about contraception.

I hope those of you who are interested in this issue (who among us isn't?!) will read Brugger's book--at least, the nonhistorical chapters--and share your thoughts with the rest of us.

Michael

Friday, June 11, 2004

Doctors and the death penalty

By Rob Vischer

Would it be permissible for a Catholic physician to administer a lethal injection to a prisoner condemned to die? What if the alternative was a poorly trained prison guard? What if the physician only stepped in if the initial injection did not do the job and the prisoner was suffering? These questions are implicated by a New York Times article today addressing the emerging controversy over the ethical propriety of physicians participating in lethal injections, which are increasingly becoming the preferred mode of capital punishment in this country. In fact, the issue may be complicated somewhat by language in a recent Supreme Court decision suggesting that a physician would need to participate, or at least be present, if the procedure was not to constitute cruel and unusual punishment. Nevertheless, my assumption would be that, unless the imposition of the death penalty in a particular case was justified under Church teaching, the Catholic physician's participation would not be permissible, regardless of the practical difficulties or secondary forms of harm the refusal to participate may cause. If anyone disagrees (or can more coherently buttress my inclination), I'd love to hear from you.

Rob

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