Capital Punishment and the Law

By Flannery, Kevin L. | Ave Maria Law Review, Summer 2007 | Go to article overview

Capital Punishment and the Law


Flannery, Kevin L., Ave Maria Law Review


I. INTRODUCTION

The realm of human affairs is a messy one, full of at least apparent inconsistency and incoherence, and the recent teaching of the Catholic Church on capital punishment--vitiated, as I intend to show, by errors of historical fact and interpretation--is no exception. And yet, as I also hope to show in this Article, despite all this, we can identify a single consistent and coherent truth propounded not only in recent years by the Church's teaching Magisterium but also throughout the centuries by the Aristotelian-Thomistic tradition.

What, and how, the Catholic Church teaches is important outside her own walls since, not only is she the largest Christian body in the world, numbering approximately one billion members, (1) but her teaching on the more controversial moral issues of our day affects political and legal systems throughout the world. Indeed, the Church's teaching

on these issues affects entities that have no--and never have had--ties with the Catholic Church or even with Christianity itself. In order to be convinced of this, one need only call to mind recent opposition to the Church's continuing role in the United Nations--opposition that would not be worth mounting were the Church lacking influence upon policy. (2) Alternatively, one can ask oneself what would happen to resistance in the United States to embryo destruction were the Church to reverse her position on the issue and say that embryo destruction is not immoral (something the Church is extremely unlikely to do). (3)

The present Article begins with an analysis of recent Church teaching, as found primarily (but not solely) in the Catechism of the Catholic Church ("Catechism"). The analysis of paragraph 2263 of the Catechism (conducted in Part II(A)) casts doubt upon suggestions in the Catechism itself that its teaching on capital punishment emerges in a straightforward manner from St. Thomas Aquinas's Summa Theologica ("Summa"). (4) Part II(B) (devoted to Catechism paragraph 2264) argues that the Catechism's exposition of the same teaching is vitiated by philosophical problems and, in particular, that it fails to integrate into its account the role of force in the analysis of human action. Part II(C) examines Catechism paragraphs 2265 through 2267, which underwent several changes before a final version (the editio typica), and argues that few of these changes are substantive.

Part III offers a way of overcoming the problems discussed in Part II. Part III(A) presents Aristotle's two-tiered approach to the question, "what is natural?" The work in which Aristotle sets out these ideas most clearly is his treatise De Caelo [On the Heavens], (5) although he explicitly applies them to the political realm. Aristotle's ideas in De Caelo are also intricately connected to his metaphysics. Part III(B) argues that Aristotle's understanding of the natural is part of the philosophical and theological tradition of the Catholic Church. Part III(C) applies the two-tiered approach of the natural to capital punishment. This allows us to say that capital punishment is, in a certain sense, natural and, in another sense, unnatural; this in turn allows us to say that capital punishment is not, simply speaking, against natural law but that nonetheless--as the Church has taught in recent years--its ethical use depends on the conditions in place in the political entity in which such use is contemplated.

II. THE CATECHISM OF THE CATHOLIC CHURCH

Let us begin, then, with the analysis of the Church's recent teaching. There are three major sources that need to be taken into consideration: (1) the original version of the Catechism of the Catholic Church, and, in particular, paragraphs 2263 through 2267 on legitimate defense and the death penalty; (6) (2) the 1995 encyclical letter Evangelium Vitae, and, in particular, paragraph 27 and paragraphs 55 through 56 (again, on legitimate defense and the death penalty); (7) and (3) the editio typica of the Catechism, which contains changes to paragraphs 2265 through 2267. …

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