The God who wants ‘an eye for an eye’ doesn’t exist – Capital Punishment, Part 3

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The cross hangs over the Altar in the Dartmouth College Catholic Centre chapel, New Hampshire, USA. PHOTO: Fr Lawrence Lew OP

As we consider the Church’s development of doctrine with respect to the death penalty, the central question that arises is this: “What about the centuries the Church approved of capital punishment? In calling for its abolition, aren’t Pope St John Paul II, Benedict XVI, and Francis and the current bishops saying our ancestors were in error? Is this not a flat contradiction of all previous revealed teaching?”

Only if the apostles and elders at the Council of Jerusalem (Acts 15) were saying that Abraham and all their Jewish ancestors (including the Blessed Virgin Mary and St Joseph) were “in error” to circumcise their children and keep kosher. But, of course, they were not. Rather, what the apostles then (and the bishops today) recognise is that more light from God – and more understanding of light already received – changes things and deepens understanding. The apostles did not declare their ancestors in error at the Council of Jerusalem. Rather, they underwent a paradigm shift. They realised that the purpose of the ceremonial laws of Moses had been to point them to the real circumcision – circumcision of the heart – that Christ gave in baptism (Jeremiah 4:4; Romans 2:29). Physical circumcision had been a road sign pointing to Christ. Now Christ had come and the true circumcision was given in baptism. When you arrive at your destination, you don’t need the road sign any more. The shadow is past and the reality is here. In short, they fulfilled, not abolished, the understanding of their ancestors, just as Jesus promised they would (Matthew 5:17). They saw further, because they stood on the shoulders of giants.

“But,” comes the objection, “what does any of that have to do with the death penalty? The Church used to say that capital criminals could be killed for shedding blood. Now she says they should not be. It’s one thing to recognise that the ceremonial laws of Moses cannot really sanctify us. But what about the demands of justice?” The Church’s thinking since Evangelium Vitae seems to only have in view the prevention of future crimes, not the punishment of past ones. Time was when the Church affirmed that the death penalty is ‘retributive justice’ for murder. It is the punishment that fits the crime: ‘life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe’ (Ex. 21:23-25). Thomas Aquinas affirms this. So do a host of Magisterial authorities before Evangelium Vitae. So it follows, does it not, that murder demands the death penalty and that to limit our thinking only to the issue of whether the condemned poses an ongoing threat to the community is to ignore retributive justice. “Whoever sheds the blood of man, by man shall his blood be shed’ (Gen 9:6).”

People gather for a vigil outside St Louis University College Church in the United States on 28 January 2014 ahead of the execution of Missouri death-row inmate Herbert Smulls. PHOTO: CNS

A brief survey of the development of the Church’s thought is in order here, because the notion that justice demands the death penalty and goes unsatisfied without it is simply not supported by Scripture or tradition.

So to begin with, there were always exceptions to the command given to Noah in Genesis 9:6. Cain, for instance, is not only spared the extreme penalty for his “primal eldest sin” of fratricide, he is actually protected by God (Gen 4:8-18). Some will reply that the incident with Cain happened before the Noahide commandment was given and therefore does not count, but I think a much wiser reading is to realise that the example of Cain gives mercy primacy over the Noahide commandment. Indeed, the soundest reading is to see the commandment to Noah not as a positive ideal, but as a concession to human weakness. Why? Because that is exactly how Jesus thinks when confronted with another Scriptural concession to human weakness: divorce:

And Pharisees came up to him and tested him by asking, “Is it lawful to divorce one’s wife for any cause?” He answered, “Have you not read that he who made them from the beginning made them male and female, and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one’? So they are no longer two but one. What therefore God has joined together, let no man put asunder.” They said to him, “Why then did Moses command one to give a certificate of divorce, and to put her away?” He said to them, “For your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so. (Mt 19:3–8)

“From the beginning it was not so.” The primal will of God is not “Murderers must always die” or “Restore abstract karmic balance when blood cries out from the ground” but “Look for opportunities to show mercy.” Seen this way, the commandment to Noah to shed the blood of murderers is a indeed concession to human weakness, a last ditch effort to restrain human evil run amuck. It is not the goal to which we are to aspire, but the rough frontier justice of a raw Bronze Age culture. This understanding of permission of the death penalty as a concession and not a positive command is seen played out in the rest of Scripture, of which more next time.