Not So Fast: Framing Capital Punishment in the Context of Historic Christian Moral Reasoning

Two weeks ago, Christianity Today ran an article purporting to show that despite the prevalence of pro-life rhetoric, especially among evangelicals, it turns out that only 4% of Americans hold to a “consistent ethic of life.” It would be easy to read the headline, sigh deeply at the folly and inconsistency of American Christianity, and move on—after all, no past time has become so favored among the evangelical literati as self-flagellation over how benighted and compromised we are. Indeed, the article plays to evangelicals’ serious case of Catholic envy by assuring us that this “consistent ethic of life” is the standard position of the Roman Catholic Church. One may be surprised, therefore, to find that this ethic includes opposition to the death penalty, a stance that Christians of almost any earlier generation would have been rather shocked to see placed alongside opposition to abortion and assisted suicide. In fact, both the historic and the current teaching of the Catholic Church are consistent in permitting the death penalty as a just form of punishment, though recent revisions highlight that it should function in practice as an unusual last resort.

Nevertheless, the Christianity Today article trades on a new general consensus among ethically-concerned people that if “Thou shalt not kill” is to be taken seriously at all, it must preclude capital punishment, and that anyone who demurs must be a hateful lover of death. Whatever our final conclusions about the death penalty may be, this sort of sloppy reasoning, which blurs standard categories like private and public, innocence and guilt, needs to be interrogated.

Writing in 1593, the great Protestant moral theologian Richard Hooker reminded his readers that “the law by which we measure men’s actions as moral agents is quite different from that which considers them as parts of a political body,” and that the failure to rightly distinguish the various forms of law that measure our actions occasions no end of confusion and conflict among morally well-intentioned people.¹ He went on in his famous Laws of Ecclesiastical Polity to carefully distinguish the three key classes of law that were commonplace in classic Christian ethical reasoning: natural law, human law, and divine law. Any thoughtful consideration of the question of capital punishment must triangulate itself in relation to these three headings.

Natural law, or the law of reason, is the most pervasive and yet the most elusive of the three categories. It refers generally to whatever we can discover, by the process of natural reasoning (often clarified and confirmed in Scripture), to be conducive to the overall flourishing of human nature. Although often thought of as some kind of unwritten law code, it functioned in most earlier Christian ethics more like common law, a form of wise legal practice and reasoning, as human beings in every age sought to grasp and apply the principles and ends instilled in them by their Creator. Hooker, like Aquinas before him, is frank about the difficulty of distilling the natural law into a set of concrete dos and don’ts; reasoning deductively from first principles, we will only arrive at some very general rules—one of which is the directive to “abstain from all violence.”²  Still, this elusiveness did not prevent most earlier thinkers, both pagan and Christian, from identifying certain actions that were taken to be clearly allowed or even required by natural law, and among these capital punishment was a fairly standard item, the debate being only whether it should be restricted to murderers or used for certain other crimes as well. Indeed, Hooker goes on to tell us that the chief way of determining which things actually belong to natural law is “the general conviction of all humanity” through the ages.³ There might seem to be a certain circularity in this definition, if everyone considers something to be natural law simply because everyone has always considered it so, but Hooker does not intend any such blind appeal to historical consensus. In every age, this consensus must be forged and renewed by careful moral reasoning, and if an era arrives in which careful moral reasoning no longer seems to sustain the earlier conclusion, we might reasonably question whether that conclusion did in fact belong to natural law. Still, historical consensus constitutes a heavy burden of proof that is not lightly overcome.

What about human law? Surely this is the category where we would locate capital punishment? Human law, in the tradition, is the means by which natural law is rendered specific, concrete, and effectual. Wise men and women deliberate over what the common good requires, and enact these requirements into law, thus specifying the general reasoning of the natural law for a particular time and place. In some cases, these laws do little more than take something that we already know to be wrong by general moral intuition (i.e., natural law) and then attach a penalty to it. Penalties are, indeed, perhaps the chief defining characteristic of human law. As prudential decisions for a particular time and place, they can and indeed must vary; one nation may see fit to punish a particular crime lightly, while another may find it needs to be curtailed more vigorously. Still, while largely guided by pragmatic considerations, human law remains tethered to natural law, and inasmuch as legal penalties are a communicative act, attesting the moral gravity of an evil, there are some limits as to how mild or harsh a penalty can justly be.⁴

Can divine law, then, provide clarity for us what just punishment looks like? Well, perhaps not as much as we might like. Properly speaking, according to Hooker (and the broader tradition for which he speaks), divine law refers only to those supernaturally-revealed duties pertaining to faith and salvation; since grace does not destroy nature, these do not overturn the created moral order of goods that determines the shape of natural law and just human law. And although the reconciliation accomplished by Christ on the cross abolishes any cultic logic that would require capital punishment (e.g., for purification of the land, as seems to be frequently implied in Leviticus), it does not overturn the natural-law rationale for capital punishment rooted in the need to protect human community against dangerous malefactors. Indeed, although most theologians have historically understood the Mosaic civil laws as examples of divinely-sanctioned human laws (and thus wholly just specifications of natural law) rather than as anything like timeless divine requirements, the capital punishments in the Mosaic code at least establish that the death penalty is permitted by natural law. Genesis 9:6 too, at the very least, establishes such a permission when it comes to murder, and has often been read as confirming a positive natural law requirement to inflict the death penalty on murderers.

So, what are we to make of all these considerations? One thing at least is incontestably—however uncomfortably—clear: there are no grounds for a categorical prohibition of the death penalty, such as that which is sanctimoniously urged upon us by many today. A strong historic consensus of moral reasoning suggests that it is in line with the natural law, and if Christians had any doubt, biblical testimony confirms that it is appropriate for certain crimes.

However, this does not mean that Christians cannot or should not oppose the death penalty in a more modest sense. The penalties established by human law ultimately serve pragmatic ends, and the growth in the policing power of the state has certainly made it possible for societies to be kept remarkably safe without the death penalty.⁵ We noted above that even broad historical consensus about the natural law can and should be reconsidered in light of new contexts, and we would be remiss not to engage in spirited debate over how whether capital punishment is still as necessary as most of our forebears believed it to be. As Christians, especially, our desire should be for all—even the most notorious criminals—to be saved, and we should seek a criminal justice system that makes this more rather than less possible. Still, the historical consensus behind the practice of capital punishment does establish a strong burden of proof which concerned Christians today should labor earnestly to meet, rather than blithely dismiss with banal mutterings about “progress.”

1. Richard Hooker, Divine Law and Human Nature: Book I of Hooker’s Laws: A Modernization, edited by W. Bradford Littlejohn, Brian Marr, and Bradley Belschner (Moscow, ID: Davenant Press, 2017), 97. Original (Laws I.16.6) may be found here. ↩

2. Hooker, Divine Law, 40; Laws I.8.7. ↩

3. Hooker, Divine Law, 35; Laws I.8.3. ↩

4. See the discussion in chapter 7 of Oliver O’Donovan, The Ways of Judgment (Grand Rapids: Eerdmans, 2003). ↩

5. Indeed, this is the reasoning in the recent revisions of the Catechism of the Catholic Church. ↩