Paul has two minor criticisms, one of Robert Miller and one of me, that are valid but not, to my mind, all that germane. So let's get them out of the way first.
Paul's criticism of Miller is that the latter's point is unacceptably general. Miller had written:
There is a danger...of bishops leveraging their legitimate authority in faith and morals into the political arena by implicitly passing off empirical judgments as if they were teachings on faith and morals commanding the assent of faithful Catholics. We should resist this.
What had occasioned Miller's remarks were those of some Church officials, who opposed Saddam's execution on the ground that it was not absolutely necessary to protect Iraqis and might only fuel a bloody cycle of revenge. Miller rightly considers those judgments "empirical," and argues that as such they do not bind Catholics in the sense of calling for "religious submission of intellect and will." Paul objects, however, that Miller makes no allowance for empirical judgments that Church officials must make all the time, such as about the sinfulness of what is confessed in the sacrament of reconciliaton, or about the validity of sacramental celebrations generally. Since some such judgments do call for religious submission from Catholics, one many not say, without qualification, that no empirical judgments by the Church bind Catholics. Yet Miller offered no such qualifications.
Paul's point is obviously true. It is so obviously true, in fact, that I think charity requires one to admit that Miller knows it. The context of Miller's remarks make clear that he is speaking of empirical judgments in the political arena that can be reasonably disputed. As a law professor, Miller is just not dumb enough to assume that no judgment of fact made by the Church should be treated by Catholics as anything more than mere opinion. There are cases when, even if such a judgment might be wrong, it would not be reasonable to dispute it. The life of the Church requires the submission of the faithful to various judgments of that kind. The only major question here, then, is whether the Vatican's position about certain cases of capital punishment is also of that kind. Paul's uncharitable criticism of Miller does not address that question.
Still, it must be admitted that the Church's teaching about capital punishment has developed in the direction of much greater strictness about it. As Cardinal Dulles makes clear, that development occurred only in the latter half of the 20th century. Aquinas, for instance, wrote that ...if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since "a little leaven corrupteth the whole lump" (ST IIa-IIae, q. 64, a. 2). Aquinas took that to apply especially to public and pertinacious heretics; be that as it may, the quoted statement itself remained pretty much the standard view through the 19th century. It was sometimes reiterated by the Magisterium against heretics of the past and "Enlightenment" ideas. Now I had also asserted that Aquinas justified the "torture" as well as the execution of heretics. Paul naturally asked me to document that assertion; and of course I can't, because Aquinas never said anything about it. Yet the torture of heretics was not exactly uncommon in his day and was quite well known to Aquinas. And so my statement is really the conclusion of an argument from silence, whereby I take Aquinas' silence as consent. Admittedly, that kind of argument is pretty weak. But as the matter isn't relevant to that of capital punishment, I turn to the more relevant ones.
The current, developed Church teaching on capital punishment is reflected in an oft-quoted paragraph from the CCC, §2267:
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.
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 concrete conditions of the common good and more in conformity with 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 non-existent."
That last sentence was inserted into the latest (1997) edition of the CCC at Pope John Paul II's behest, in keeping with that pope's statement in Evangelium Vitae §56 (1995). As a result, almost the entire dispute among Catholics these days about particular instances of capital punishment hinge on whether that sentence is (a) true; (b) whether or not true, binding on Catholics in the sense of requiring "religious submission"; and (c) if binding, whether its application to specific cases by Church officials is also binding in that sense. Now I believe (a) and (b) and have made that clear before. So the only point of contention is when an affirmative answer to (c) is warranted.
As best as I can make out, Paul's position is that CCC §2267 is clear enough in itself to render, e.g., the condemnation of Saddam's execution binding, assuming (a) and (b). One might sum that position up by contrast with Aquinas'.
The Common Doctor's position invokes a certain notion of social harm, such that prevention of such harm sometimes suffices to justify the death penalty. One must admit that if, as I concede, the Church's developed teaching today is binding, he went too far with that definition. Without it, he would not have justified the execution of heretics, in an era when heresy was a civil crime, as well as certain other kinds of criminals; yet as Dignitatis Humanae makes clear enough, the Church today clearly rules out the death penalty for heretics even in a Catholic state. But given the present teaching, what sort of serious social harm would be such that one could reasonably view the death penalty as, in certain cases, "absolutely necessary" to prevent it? That is the question that Paul and I answer differently. I hold that it's far more often a matter of opinion than he seems to believe.
I do not wish to assert that Paul is a "progressive" Catholic; he is certainly not a "cafeteria" Catholic. But like many progs, he seems to take for granted that the only sort of social harm that could conceivably suffice, in certain circumstances, to justify capital punishment is lethal, physical aggression by the convict himself. That is the narrowest definition of harm relevant for the purpose at hand; as such, it certainly is an interpretation of the CCC one could adopt, as it seems to have been by, say, Cardinal Martino. But is it the only one consistent with orthodoxy? I don't think so. Given the Church's broader, older tradition on the death penalty as outlined by Cardinal Dulles, I cannot find reason enough to believe that the narrowest possible definition of harm is now the only orthodox one. And once the possible legitimacy of a broader definition of social harm is allowed, the question arises: When is the death penalty "absolutely necessary" to prevent such harm? That, I submit, is a matter of opinion. Cardinal Dulles seems to agree, and I haven't heard that he's been admonished for that.
There are really two questions here. One is a question of doctrinal interpretation: whether interpreting the use of 'harm' in CCC §2267 is itself a matter of opinion or, rather, is such that there is only one legitimate interpretation that itself binds Catholics. The other is whether, even given the narrow interpretation, its application based on empirical judgments is itself only a matter of opinion or is also binding on Catholics when made by their duly constituted leaders. Since I believe the first is a matter of opinion, I believe the second is too. But if one agrees with Paul that only one interpretation is orthodox, then there will be many cases when the empirical judgments made by Church leaders in applying it prudentially cannot be reasonably disputed. And so I believe the more interesting question is the first.
To my knowledge, that question has not been widely or at least cleary debated as yet. In the meantime, my conclusion is the same as Cardinal Dulles':
The doctrine remains what it has been: that the State, in principle, has the right to impose the death penalty on persons convicted of very serious crimes. But the classical tradition held that the State should not exercise this right when the evil effects outweigh the good effects. Thus the principle still leaves open the question whether and when the death penalty ought to be applied. The pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good. I personally support this position.
