Death Penalty and High Justice

Do secular democracies have the right to engage in “high justice,” that is, “the attempt to balance the cosmic books, to stabilize a shaken universe” to answer the blood that cries from the ground by shedding blood? That is the question Jody Bottum raises in a fascinating article in the August/September issue of First Things.

Bottum argues that all governments have the authority to wage war to defend citizens, and also in extreme circumstances have the authority to execute criminals who harm the entire society. Yet, the right to self-defense and the “duty to preserve the normal justice of the social order” do not legitimize the death penalty: “Capital punishment may occasionally be necessary in a modern democracy, but it is never right, for the death penalty is not in a line with other punishments.” Nothing gives modern secular states “a license to break free from the social aims of normal justice and pursue closure for a story of high, cosmic justice.”

What would it take for a government to have such a right? Bottum says that God might command death, or a magistrate could have “a covenantal mandate in a divinely ordained state like ancient Israel, with some kind of ongoing priestly warrant.” In short, “The death penalty requires some extraordinary authority, and if we reject the divine election of kings over us, as all Western nations have (Britain’s Elizabeth II may be the last living European monarch to have been literally anointed in a Christian ceremony, during her coronation in 1953), then we have also rejected the justification for a legal system to claim to be enacting the highest story of earthly justice.” Though some modern nations play a unique role in God’s providential government of history, “Christians would have to engage in a national idolatry to suppose that all the acts allowed in ancient Israel are permissible in Connecticut.” Yet, the death penalty is not confined to Israel in the Bible, but is a power given to Noah, the head of a new humanity, after the flood.

Bottum raises Romans 13, and suggests that it gives no absolute warrant for the death penalty: “as one who had seen Roman tax-farming in operation and knew the Romans had carried out the execution of Jesus, Paul certainly had no illusions that the reigning authority of Rome was anointed or godly. The ‘sword’ he mentions is a metaphor for police powers that do not necessarily imply approval of the death penalty.” At this point, Bottum goes off-track. As a Pharisee, Paul certainly did approve the death penalty as such, and it is hard to see how “sword” could mean much of anything but a threat of mortal retaliation. If Paul believed that the death penalty was right for Israel and not for other nations, he chose a singularly misleading way to make his point. Second, in the very passage that Bottum cites, Paul claims that the powers that be are agents of vengeance, conflicting with Bottum’s own claim that the state is not “a sort of hired agent or substitute avenger.” In Romans 12-13, Paul’s exhortation to suffer injustice without vengeance is rooted not only in hope for divine vengeance but in an expectation that evil-doers will suffer vengeance from civil powers.

Citing John Paul II’s Evangelium Vitae , Bottum argues that a contemporary Christian view of the death penalty would emphasize “the inherent dignity of the person.” Further, by exploring the issue of the death penalty within the story of Cain and Abel, John Paul affirms both the reality of blood-debt and the disorder it causes and the divine prohibition on paying that debt. He concludes that “Circumstances alone dictate when capital punishment is necessary for a government’s self-defense and preservation of the social order. But in a culture that seems to have embraced death with widespread abortion and euthanasia, the correct prudential judgment would be never to impose the death penalty.” The death penalty will teach our culture only that “yet more life is valueless and yet more life can be destroyed.”

I have some disagreements with Bottum’s line of argument, but his prudential conclusion is very attractive. Do we really want to urge these people to take life and death into their hands?