MELISSA ROGERS: Good morning. My name is Melissa Rogers, and I am Executive Director of the Pew Forum on Religion and Public Life. Welcome to “A Call for Reckoning: Religion and the Death Penalty.” We look forward to a lively and engaging discussion on this important issue.
Let me say a special word of thanks at the outset to the University of Chicago Divinity School for hosting this important event, and for their assistance with the event. Dean Richard Rosengarten will be with us shortly.
Also, let me say a few introductory words about the Forum. The Forum serves as a clearinghouse for information and a town hall for discussion of issues at the intersection of faith and public life. We believe that religion is relevant to public affairs, and public affairs are relevant to religion. The Forum seeks to be a place for the productive discussion among diverse points of view on the subject. The Forum does not take a position on the death penalty or other policy issues, but seeks to serve as a true forum for contrasting perspectives. The Forum is supported by The Pew Charitable Trusts, and we are very grateful for that support. Under the leadership of Rebecca Rimel and Luis Lugo, Pew has truly been a trailblazer on issues of religion and public life. And, Luis Lugo, who is the director of the religion program at The Pew Charitable Trusts, had a key role in envisioning the Pew Forum, and we are grateful that he could join us here today.
The Forum is fortunate to have as its co-chairs two national leaders on the issue of religion and public life. E.J. Dionne is one of our co-chairs. He is a columnist at the Washington Post, and also a senior fellow at the Brookings Institution. He will lead the discussion this afternoon.
Our other co-chair is Jean Bethke Elshtain. She is well-known to the Chicago community and to the national community on religion and public life issues. She is the Laura Spelman Rockefeller Professor of Social and Political Ethics at the University of Chicago, and she will lead our discussion this morning.
The Forum is also fortunate to have as partners in our endeavor many excellent institutions. The grant for the Forum is made to Georgetown University, and we are grateful for their partnership. We are also grateful for the institutions of our respective co-chairs, the University of Chicago and the Brookings Institution, for their participation in the Forum’s work.
Jean Bethke Elshtain has led an extraordinary team of Pew Forum staff in Chicago in envisioning and organizing this event. Let me take this opportunity to thank her for her leadership on this conference, and also to recognize and thank the members of the Pew Forum Chicago Office for their work. When I call their names, if they would please stand, John Carlson, Erik Owens, and Eric Elshtain. I would like to thank them for their great dedication.
You might have been able to recognize them by the deep dark circles under their eyes, but I went ahead and had them stand to make sure everyone would see them. They have taken painstaking labors, and had great dedication to this project, and we’re very grateful to them for their labors.
Staci Simmons and Amy Sullivan at the Pew Forum Washington Office, and Kayla Drogosz of the Washington Office have also played key roles in the project, and we’re grateful for their assistance.
Finally, let me thank each of our distinguished panelists for joining us in this event, and let me thank each of you for your participation in the forum.
At this time, let me turn over the podium to Jean Bethke Elshtain.
JEAN BETHKE ELSHTAIN: Thank you very much, Melissa.
As Melissa Rogers—and we are indeed fortunate to have her leadership role—indicated, the Pew Forum has, in its year plus a bit of existence, sponsored many events. It’s a long and growing list on a whole range of hot button questions that bring together religion and politics, from the stem cell debate to faith-based initiatives. Today, we are taking up a complex and troubling and highly volatile question, that of the death penalty. As Melissa indicated, we’ve assembled a distinguished group of scholars, and jurists, and church and public figures to help us understand better the religious and the moral issues implicated in the death penalty.
Now, when we invited people to spend this day with us, we did not say to them, please come and give us your own views. We know that people’s own views inevitably enter into any discussion of this sort, but our primary instruction was to offer the religious, ethical and moral reasons the speaker finds most exigent in his or her tradition or vocation as a basis for understanding, criticizing, or justifying the death penalty.
We have distinguished scholars drawn from the Catholic to the Protestant and Jewish and Islamic traditions, we have distinguished jurors, we have distinguished public figures who have made known and explained the ways in which their own religious and moral views enter into their thinking on the death penalty.
Now, because you have already discerned that our schedule is very tightly packed, all of our speakers have been alerted to the need for precision. We want to pay attention to this requirement of brevity because we look forward to your participation.
I should tell you that we expected some interest in this event, but we had no idea the level and extent of that interest. So, to those of you who are in our three overflow rooms, I want to say hello. You can see me through closed-circuit television, and I’m sorry we could not accommodate you in this main room.
When the time comes for you to participate, you will see the microphone in the center aisle. We would ask you to file out of your seat and make your way around, and come up to the center aisle, and anyone who has come with prepared comments can simply pocket them now, because we expect questions, not speeches, when the moment arrives, again, in the interest of maximizing participation.
Now, you’re going to find bios of our speakers in your packet of materials, each of our distinguished panelists has agreed to forego an elaborate introduction in the interest of time. So, we now move to Session One: Faith Traditions and the Death Penalty. Ladies and gentlemen, the distinguished scholar, the revered churchmen, His Eminence Avery Cardinal Dulles to discuss with us the Catholic tradition and the death penalty.
AVERY CARDINAL DULLES: I will try to be very concise in my delivery because I know that we have a very tight schedule. I hope you’ll pardon me for going a little bit fast.
Until at least the middle of the 20th Century, it was generally agreed in the Catholic Church that the state had the right and sometimes duty to impose the death penalty for certain heinous offenses. This teaching seemed to have an adequate foundation in Scripture, and was the common doctrine of the fathers and doctors of the church, including the two great doctors of the West, Augustine and Thomas Aquinas. Pope Innocent III, early in the 13th Century, made acceptance of this doctrine a condition of reconciliation with the church of certain heretics who denied the doctrine. They were required to subscribe to the following proposition: “The secular power can without mortal sin exercise judgment of blood provided that it punishes with justice, not out of hatred, with prudence not precipitation.”
After the Second World War, Pius XII clearly supported the death penalty in addresses to jurists and doctors. The same position was affirmed by the Catechism of the Council of Trent, and many other Catechisms, manuals of theology, reference works, and the like, so that the legitimacy of capital punishment was clearly in possession. The death penalty was judged to fulfill the purposes of punishment which are generally reduced to four: retribution, defense of society against the criminal, deterrence of other potential criminals, and finally the rehabilitation or conversion of the individual culprit. The main purpose was generally thought to be retribution. The text from St. Paul in Romans was quite classical in the view that the public authority does not bear the sword in vain, for they are God’s ministers to execute judgment on those who do evil, and so forth.
The rehabilitation, of course, doesn’t exactly take place when the criminal is executed, but at least some arguments were made that the imminence of execution was a powerful inducement to repentance and reconciliation with God.
After World War II, you have an increasing number of Catholic opponents of the death penalty, especially in Europe. I think there may have been some connection with the Nazi and Communist abuse of death punishment. But, nevertheless, the first edition of the Catechism of the Catholic Church in 1992 restated the classical position. It said the traditional teaching of the church has acknowledged the right and duty of a legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding in cases of extreme gravity the death penalty.
Now, in Evangelium Vitae, 1995, as you all know, John Paul II came out with a slightly different point of view, he didn’t exclude the death penalty, but he reduced it to very unusual extreme cases, and said that bloodless means were always to be preferred if they could sufficiently protect society against the criminal. And in accordance with statements of the Pope, the Catechism was revised in—I forget which edition it was, 1996 or somewhere later on, by 1998, I imagine, and it was revised to reflect the language of John Paul II’s Evangelium Vitae. And you’re probably familiar with that text.
In accordance with the Pope’s declarations, and the new wording of the Catechism, the American Bishops have published a number of statements advocating a moratorium on, if not total abolition of, the death penalty. Most recently, in November 2001, the United States Conference of Catholic Bishops issued a lengthy pastoral plan for pro-life activities, which included three paragraphs against the death penalty.
Besides making doctrinal pronouncements, the pope and the bishops have regularly pleaded for clemency in the case of criminals being executed, including the notorious case of Timothy McVeigh in the spring of 2001. Prima facie, then, it would seem that the teaching on the death penalty has changed from approval in the past to disapproval in the present. What was previous seen as licit or even mandatory is now seen as forbidden.
Now, the reversal of a doctrine so well established as the legitimacy of capital punishment would raise serious problems about the credibility of a number of other magisterial pronouncements, since the magisterium is accustomed to argue from Scripture as interpreted by long-standing Catholic tradition on many other issues. Even if it is possible to reverse this doctrine, one could ask, what would be needed to reverse it? I think you would need competent authority to declare that the previous teaching was in error and show arguments from reason or revelation why the new doctrine is better. But Pope John Paul II and the bishops have never been critical of the tradition. In fact, they’ve appealed to the tradition in proposing their own positions. So, I think that that teaching ought to be understood, if possible, in continuity with the tradition rather than as a reversal. If the new position is a reversal of the past, one could ask how long that’s going to last; also, isn’t it also going to be reversible, and wouldn’t a Catholic feel more warranted in following a tradition that had stood up for 2,000 years rather than a tradition that started yesterday? So that it would put the faithful in somewhat of a quandary of having to choose between the classical doctrine and contemporary teaching.
Now, I think it’s not really going to be necessary to make a choice, because the shift can be interpreted in several different ways. At one extreme, you have abolitionists who maintain that it is never legitimate to deliberately take a human life, so they would say that the death penalty is only legitimate under the rubric of self-defense, and that in self-defense, really, the intention is to defend yourself, and simply render the aggressor incapable of doing harm, which may accidentally involve their death.
Now, it seems to me that’s not a legitimate interpretation of the teaching of either the Pope or the Catechism on the death penalty, because when you are executing a criminal the intention is obviously to kill, and they do admit that under certain circumstances, there can be a legitimate need to kill the offender. So I would exclude the first position as at least not being a legitimate interpretation of the current Catholic teaching on the death penalty.
The second school would say that the classical position has been modified, but not reversed. There’s been a legitimate development of doctrine, some contend, and whereas four legitimate aims were originally recognized, now it’s been reduced to one. The only one that of itself justifies the death penalty would be the self-defense of society against the criminal.
But one has to say, what has happened to the primary purpose of punishment, which the Pope and the Catechism recognized as to redress the disorder caused by the offense? There are a number of statements that say that is the primary purpose of all punishment. And isn’t the defense of the public order as a moral order important for the defense of society itself? Is it legitimate to reduce the defense of a society against the criminal to a physical defense against the potential aggressive acts of this particular criminal, or is it a defense of the moral order that’s needed to sustain a moral, social system?
I think there is a third interpretation possible, and this would be in accord with the tradition that the Pope and the Catechism are, without upsetting the traditional doctrine, simply making a prudential judgment that under present circumstances in countries like the United States, cases in which the death penalty is justified are extremely rare, if not non-existent. But it can be required to defend society either physically or morally against the dangers that would arise if capital punishment were not used. Although the classical teaching of the church was correct, the application of the death penalty is held to be undesirable in a society like our own for a number of special reasons.
Some would point out that the inequitable application of the death penalty by courts and juries that are prejudiced against blacks, or other minorities, result in very unfair application. Some would say that poor and uneducated clients are in many cases unable to obtain adequate legal counsel, and for that reason they’re not able to get off as well as well-educated whites and so forth. Some people maintain that even apart from those two reasons, miscarriages of justice are always possible. There have been quite a large number of cases of death or capital punishment reversed on appeal, in some cases with the help of DNA evidence, which makes it seem likely that some judicial errors have slipped through, and that some innocent persons have, in fact, been unjustly executed, and that would be a very serious concern if true.
Then there is the great difficulty of assessing the subjective guilt of the defendant. We always say that there must be culpability for there to be a punishment, at least retributive punishment, which is really the only real punishment there is, but it’s hard to assess the guilt of most capital offenders because they’re either very unintelligent, or people with very severe psychological disabilities, and really God alone knows their subjective culpability. The state is not in a very good position to assess that. Then there is the tendency of executions to feed an unhealthy appetite for revenge. I think there is an article from Professor [Thomas R.] Rourke who has a very good statement on that on page 22 of the materials distributed for this conference.
So from a Christian point of view, the administration of justice should never be motivated by anger or vindictiveness, and that was already present in the statement I read from Pope Innocent III. It should be a question of objective justice, and not getting back at the offender. And then according to the classical doctrine, the state was seen as acting in the name of God, as God’s ministers to execute judgment, and in our popular American way of perceiving the state, we see the state more instrumentally as executing the will of the people. We’ve lost that kind of reverence for public authority that seemed to underlie the classical doctrine. And that to me at least raises a question, it’s only a question in my mind, as to how much we can look to the state as God’s minister manifesting a transcendent order of justice. I’d like to think we still can. But it’s more difficult under present democratic mentality.
Finally, I would mention the urgency of manifesting respect for the value and dignity of human life, at a time when assaults on innocent human life, through abortion, euthanasia, and violent crime are widely prevalent. I think that the Pope and the bishops feel that we should go to an extreme of respecting human life, even guilty human life, in order to defend human life more effectively. And there may be something to that argument, too.
It’s not necessary for all seven of these objections to apply in each particular case, but even in cases where there’s no doubt about who the perpetrator of the crime was, still the practice of capital punishment may contribute to increase, rather than diminish, violence in our society. So I would favor, as the bishops do, limiting the application of the death penalty to extremely rare cases, where the safety of persons and the moral order of society would be jeopardized unless the criminal were deprived of life.
I hope I’ve been clear as to what the three interpretations are: the first the abolitionist, the second a kind of development of doctrine by way of restricting it to the physical safety of society, and the third interpretation is that it’s a merely prudential application of the classical doctrine to current circumstances. And I think that third interpretation is to me the most plausible, has the advantage over the other two of not requiring a rejection of previously settled Catholic doctrine. Catholics who wish to be faithful to both the past and the present teaching of the magisterium will be inclined to adopt what I call a hermeneutics of continuity, that reads current magisterial teaching in the light of Scripture and tradition. In terms of such a hermeneutics, I propose my interpretation as the best available.
JEAN BETHKE ELSHTAIN: Admirable clarity and brevity. Next we turn to a good friend of the Pew Forum, the distinguished philosopher and teacher and scholar, Rabbi David Novak, on the Jewish tradition and capital punishment. Rabbi Novak.
DAVID NOVAK: I want to thank the Pew Forum for inviting me here today to return to my alma mater, the University of Chicago. I’m always honored and pleased to be invited by the Pew Forum, and especially to come to the University of Chicago.
Debate over the death penalty is of such practical import in our society that it would be irresponsible for me to simply report opinions regarding the death penalty in my own tradition. The import of this question requires responsible citizens in our heterogeneous society, coming from their respective traditions, be they religious or secular, to at least suggest a judgment on the death penalty emerging from their tradition.
A question of such immediate moral concern makes a greater and more specific claim on our judgment than any question motivated by merely general curiosity. Indeed, merely reporting what one’s tradition has said about a current moral controversy, like the one concerning the death penalty, usually shows that the same moral controversy can be found within his or her own tradition. As such, leaving the discussion at the merely descriptive level allows the reporter to evade responsibility for what the answer of his or her tradition ought to be for the question at hand here and now.
At the descriptive level alone one could get away with concluding that, well, some Jewish thinkers are in favor of the death penalty, and others are opposed to it. But, that is hardly enough. In other words, the political implications of any public discussion of the death penalty are too significant for any such discussion to be left in such an irrelevant academic corner. Moreover, even though the Jewish tradition I am to discuss with you is only morally authoritative for us Jews, its wisdom can nonetheless suggest guidance for those of other traditions, especially when they discover analogous patterns of moral reasoning during a process of authentic multi-cultural dialogue. Out of this process of multilateral guidance can emerge a unilateral conclusion having real governance that is leading to real political and even legal consequences.
Furthermore, in the process of becoming more normatively focused, such specific judgments, only tentative and suggestive at present, should still have some direct relevance to a particular situation or case of deep moral concern to those of us here for these deliberations. It takes no stretch of imagination at all to see the death penalty as a matter of such particular concern for all of us, due to the terrible events of September 11th. Of course, even had these events not occurred, we would have other events on which to focus our particular concern. Nevertheless, the events of September 11th seem to have eclipsed them. Out thoughts constantly return to September 11th. How could anyone here or elsewhere when the death penalty is so much as mentioned not think of the victims and the victimizers who came together on that, by now, infamous date.
On September 11th the victims and the victimizers came together in a global danse macabre. A death penalty was decreed and enacted, even entailing the suicide of the immediate perpetrators. Yet some of the victims, and some of the less immediate victimizers survived the killing. What are we to do with them? In the case of the victims who survived, our immediate response must be to offer them financial aid and emotional comfort. But do we not also owe them, both the living and the dead, justice?
In relation to the victimizers we are still living and at large, are we not required, in the oft-stated words of President Bush, to “bring them to justice?” The question is, of course, just what sort of justice are we to bring them to. And to cite the most immediate case that could possibly face us, what could we justifiably do if we were to capture Osama bin Laden, or one of his close associates in the leadership of Al-Qaeda. Could we try him or them in a court of law? Who could sit in such legal judgment of him or them? What could be the maximum punishment meted out to him or them, if and when found guilty.
In terms of this last question, the question immediately following is, how could we justify executing him or them on moral and legal grounds? What does Judaism say, or better what could Judaism say, about this? Surely, its pride in having a true teaching, torat emet, requires that its thinkers remain neither mute nor noncommittal.
Now, both the Nuremberg and Eichmann trials, which provide precedent for even the discussion of a trial of Osama bin Laden and the leadership of Al-Qaeda, in both of these cases the accused were tried in a court of law, as opposed to simply being killed upon capture. The reason for the death penalty in such cases was best expressed, I think, by the late political philosopher Hannah Arendt, who despite her rather ambivalent relationship with her own Jewish heritage, nevertheless expressed views, as we shall soon see, which have strong foundations in the Jewish tradition, whether she knew it or not.
In the epilogue to her still controversial book of 1963—I’m still old enough to remember the controversy in this university—Eichmann in Jerusalem, she formulated what she thought should have been the justification for the death sentence against Adolf Eichmann for the crime of genocide. Dramatically speaking in the second person, as if she herself were the presiding judge, pronouncing the death sentence against Eichmann, Hannah Arendt wrote, “and just as you supported and carried out a policy of not wanting to share the Earth with the Jewish people, and the people of a number of other nations, as though you and your superiors had any right to determine who should and who should not inhabit the world, we find that no one, that is no member of the human race, can be expected to share the Earth with you. This is the reason, and the only reason you must hang.”
I would like to place Hannah Arendt’s great insight about the death penalty for the crime of genocide in the context of the exceptionally rich tradition of moral experience and reflection of her people, something she herself did not do. And how she responded to the program of terror implemented by Adolf Eichmann and those with him is to a large extent the way we can respond to the program of terror initiated by Osama bin Laden and those with him.
By so doing we can develop her insight with greater precision, and we can better connect it to the moral distinction that needs to be made between the murder of individual persons for reasons extraneous to their essential humanity, homicide, and the murder of persons for the sole reason of removing them, and everyone like them from humankind all together, genocide. Making this great moral distinction should lead to even greater legal differences between homicide and genocide.
Now, before we come to the Rabbinic—and I mean Rabbinic, the Talmud and its tradition—speculation on the death penalty that could be most directly applied to the events of September 11th, we must see how the rabbis looked at the death penalty in what might be seen as more ordinary circumstances, which are when one private citizen murders another private citizen. Only after looking at what is ordinary can we better appreciate Rabbinic speculation on what is clearly much more extraordinary. We must understand the legal reaction the homicide before we can understand the legal reaction to genocide. In some ways they are similar, in others different.
By this declaration, by his declaration of a war of extermination on Jews qua Jews, Americans qua Americans, and Christians qua Christians, Osama bin Laden and his associates have taken responsibility for what is in our eyes, but not in his or theirs, the crime of genocide. Now in the context of dealing with ordinary homicide no traditional Jewish thinker could be opposed to capital punishment in principle, since it is clearly mandated by Scripture, the point that Cardinal Dulles just made.
To all humankind Scripture mandates, “Genesis 9:6, whosoever sheds human blood by human shall his blood be shed.” To Israel—that is, what came to be solely identified as the Jewish people—Scripture mandates, “Whosoever strikes a man dead, he shall be put to death,” Exodus 21:12, and Leviticus 24:21-22, “Whosoever kills another human being, he shall be put to death. There shall be one penalty for the alien and the native.”
Nevertheless, there is debate in the Rabbinic tradition as to how widely applicable these laws are, especially the laws applying to Jewish murderers in a Jewish polity, which I might add is imaginary, because when the Rabbis were talking about it there was no Jewish polity. Despite the scriptural mandate for capital punishment, certainly for premeditated murder, there is great debate concerning the extent to which this mandate should be put into actual practice.
Two of the most influential sages of the second century of the first millennium, Rabbi Tarfon and Rabbi Akivah, stated that had they been in the Sanhedrin, the Jewish Supreme Court, when Jews did have the political power to administer capital punishment in their own community, no one would have ever been executed. They would not have been executed, because almost none of them could be executed according to the law. For theological reasons, these rabbis could not justify this opinion by declaring their opposition to the scriptural mandates of capital punishment. Scriptural mandates may never be appealed, because the law of God can never be corrected by humans, it can only correct them.
Instead, later sages explained their opinion, that’s the opinion of the two opposing rabbis, by arguing that they would have interpreted the laws so strictly that, in fact, if not in principle, it would be impossible to ever officially sentence anyone to death. In other words, being stricter as regards the laws of evidence de jure enables one to be more lenient regarding the death penalty de facto. In effect then, it would make the mandate for capital punishment a null class, which is a legal fiction. And if anyone asks why Scripture would mandate what is, in effect, a null class, they would answer that the purpose of the law is moral instruction about the gravity of the crime of homicide.
As was said about another such law, one involving the death penalty for a juvenile delinquent, where some rabbis also argued for a null class, stating, “it never was applied and never will be.” The purpose of the law is theoretical. Namely, those who study it “should be rewarded for ethical reflection upon it.” (darosh ve-qabbel sekhar)
Now, it is important to connect the legal views of Rabbi Akivah, especially, who was the most prominent of the early rabbis with his theology. One of the cardinal points of his theology is that the essence of humanness is that humans are created in the image of God, which seems to mean that there is a sacred dimension to life itself, because human beings, every human being, whoever, is the object of a particular divine concern or providence. So even though the fact that the victim of homicide is designated by Scripture to be made “in the image of God” (Genesis 9:6) and that is the reason for his murderer to be executed, the murderer, too, is no less made in the image of God. As such even the execution of the murderer, to use the words of Rabbi Akivah in another context, “diminishes the divine likeness.” (mema`et ha-demut).
Now, the opposing view enunciated by Rabban Simeon ben Gamliel argues that if this legal fiction making capital punishment for homicide were actually in force, the effect would be, “to increase murderers in Israel.” The usual interpretation of this more stringent view is that is assumes that capital punishment as a real social institution is required for the deterrence of homicide.
Thus, what seems to be a view consistent with that of Rabban Simeon ben Gamliel, another sage, Rabbi Hanina the vice-High Priest, argued that the Jews need to pray for the success of the Roman government. But, isn’t this the same Roman government who had destroyed the temple, the religious center of the Jewish people? Isn’t this the Roman government who had squashed Jewish sovereignty by their defeat of the Army of Bar-Kokhba? His reason, nonetheless, is without such governmental authority and power, “a person would swallow his fellow alive.” He surely had the Roman use of the death penalty in mind. And this is well known from the execution of Jesus of Nazareth, the Roman government often used capital punishment as a way of maintaining political order, because of what they believed to be its deterring effects.
Conversely, those sages who would have probably been closer to the more lenient views of Rabbi Tarfon and Rabbi Akivah, often expressed their disapproval of how easily, carelessly, and guiltlessly the Romans used their power of capital punishment. Indeed, one could see actual Jewish revulsion at this prevalence of capital punishment in their society, which they did not control politically, to be a major factor in ruling quite differently for what they the rabbis hoped would be the future society, which they would control politically, according to more accurate criteria of justice. This is the Jewish view of the Roman government, expressed by the statement of the legal philosopher Ronald Dworkin, distinguishing a regime of rights and a regime of ordered brutality.
Now, the main aspect of the Jewish law of homicide that makes capital punishment very rare—something, by the way, never disputed in principle even by seemingly pro-death penalty jurists of the view of Rabbi Simeon ben Gamliel—is the practice of hatra’ah, or forewarning. This practice assumes that the only way one could assume malice aforethought in the crime of homicide, and thus what differentiates it from what today would mostly be considered to be something like manslaughter, is if the criminal had been explicitly forewarned by the same witnesses who witnessed the crime itself. In other words we need explicit evidence that the fully conscious intention of the criminal had been to violate a law whose content and consequences he or she was fully aware. We don’t infer it; it has to be explicit.
This forewarning consists of the witnesses explicitly informing the criminal just about to commit the crime that: one, the act he is about to commit is proscribed by the Torah; two what is the exact punishment for which he will be liable if he performs the proscribed act; three, the exact status of the would be victim in a case of a crime of aggression, and four, the verbal indication by the would be criminal himself, or herself, back to the same witnesses that he or she intends to commit the crime anyway. In other words, the burden of proof is on the accuser, that is on the prosecutor, to show that the person charged with homicide explicitly demonstrated that he or she was compos mentis in the most complete sense possible.
Yet, it is extraordinarily difficult for this to happen, even when crimes are actually witnessed by others, the presence of these others is rarely known in advance. In fact, foreknowledge of witnesses by a would be criminal would probably deter all but the most foolhardy from carrying out their criminal intentions.
Whether what might be termed this legal “ritual” was ever actually practiced by the Jews is hard to say. Nevertheless, its actual practice would be extremely rare for another reason, which is the biblical commandment “You shall not stand idly by the blood of your neighbor” (Leviticus 19:16), which the Rabbis interpreted to mean a positive obligation to rescue someone from imminent mortal danger. That being so, wouldn’t two witnesses who could get close enough to warn a would-be assailant just about to attack his or her would-be victim, wouldn’t they more than likely be in a position to save the would-be victim from homicide, even if that meant killing the would-be assailant, rather than wasting precious time warning the would-be assailant? As such, could one not assume that the practice of hatra’ah might have been invented by those who agreed with Rabbi Tarfon and Rabbi Akivah that the law of the death penalty be, in effect, a null class? Also, since the practice of hatra’ah is not disputed in general—there only being dispute about some of its more specific aspects—it would seem that the only difference between those rabbis who seem to be anti-death penalty and those who seem to be pro-death penalty is that the pro-death penalty rabbis would interpret the laws of evidence somewhat more leniently than the pro-death penalty rabbis. That is the view of Rabbi Tarfon and Rabbi Akivah as interpreted by later scholars.
Now, comparing the traditional Jewish law of the penalty for homicide with current American practice in the same area, or at least current American legal practice in most states, and in federal jurisdictions, indicates that we execute criminals far more easily. Such practices as self-incrimination and the use of circumstantial evidence, that is the absence of eyewitnesses, to cause a conviction for homicide, which we find in our own society as legal practices, are proscribed, prohibited by traditional Jewish law.
Moreover, this greater stringency of the Jewish law pertaining to the death penalty is even the case of what the Rabbis envision to be the standards Jews should accept and respect when practiced by gentile societies. Here the Rabbis assume that one could be convicted for homicide on the testimony of one witness rather than two, and without the forewarning of hatra’ah. Nevertheless, even here there would be far less capital punishment than in our society today, because the chance for an error in judgment would be far less.
Of course, here again, because of the primacy of Scripture, which by the way influenced common law to the point of its being cited in common law cases until the 20th Century, no one could advocate on traditional Jewish grounds that the death penalty, especially for the crime of homicide, be abolished. But, on these same traditional Jewish grounds one could argue that the law of capital punishment is more symbolic than real. This is especially convincing when one questions whether the death penalty really is a deterrent, and without its active practice the chances of increased homicide actually does increase.
Here again, Jews might question the depth of the commitment of our society to the sanctity of human life. This is also at the heart of the Rabbinic principle that, “when there is any doubt regarding human life, the benefit of the doubt should be in favor of the human life, even when that human life is very likely the life of a murderer.” That does not mean, though, that we might not devise other ways to protect society from those whose guilt and presumed danger to society is less than perfectly ascertained. That is, the concern for human life does not rule out the institution of imprisonment even for a life term.
Now, the rabbis were also aware of some basic differences of what might be termed public crimes as distinct from what we have seen as private crime. By public crime I mean a crime ordered by the leaders of a society, even if that society be a band of pirates, whom one can judge Al-Qaeda to be, even when governments who support their operations deny they do so. Indeed, a pirate used to be in the category of what was called an enemy of the human race. The crime is even more public if it is ordered after a public declaration of intent by the leaders of a society, and it is most public when it is directed towards the extermination of all the members of another society, that is genocide.
Concerning the ordering of a crime, note the following rabbinic dispute: “One who says to another, ‘go and kill another person (ha-nafesh),’ the one who killed is liable (hayyav), but the one who sent him is exempt (patur). Shammai the Elder in the name of Haggai the prophet says ‘the one who sent him is also liable.’ This is based on Scripture, ‘You killed him with the sword of the Ammonites’ (II Samuel 12:9).” The killer here is King David, who it will be recalled, ordered his general Joab to place the soldier, Uriah the Hittite, the husband of the king’s paramour, Bathsheba, in a battle situation where Uriah was certain to be killed by the enemy.
The king’s orders, though, were followed unquestionably by Joab, who again and again proved that his loyalty to his king took precedence over everything else, even the divine law of justice. Subsequent discussion in the Talmud qualifies this debate, it assumes that the first sage is not saying that the one who instigated a murder is totally innocent, rather the dispute is over the extent of guilt. Haggai the Prophet as reported by Shammai the Elder is assumed to assign direct guilt to the instigator of the homicide, whereas the anonymous sage is assumed to assign indirect guilt.
Now, the 15th Century Jewish statesman and theologian Don Isaac Abravanel, contrary to the drift of the Talmudic discussion, considers the act of King David paradigmatic. In fact, he sees another example of such officially ordered, but not directly implemented murder in the murder of the Priests of Nob by King David’s predecessor King Saul. Thus, Abravanel writes, “The reason for this is because he was a king, and no one violates his command, therefore it is as if he himself killed him.” Kings have the power of life and death over their subjects, and even though later rabbis rule that one should die rather than kill someone else due to an unjust decree, the fact is that very few people would risk their lives by defying someone as powerful as a king.
And it helps our appreciation of this insight to know that Abravanel was a man who held high state posts in Spain, Portugal, and Venice, and thus had intimate knowledge of how political power operates in the world. Political power, when unencumbered by moral and legal restraint frequently operates as terror. Abravanel, more than any other Jewish thinker on these questions, certainly knew that from his own experience of state.
Now, what we learn from this is that the essential difference between private versus public murder is that in private murder we are to punish the direct perpetrator of the crime far more severely than the instigator of the crime. Whereas, in public murder, which is murder ordered by the leaders of the state, however informally organized, we are to punish those who ordered the crime at least as severely, if not more severely, than we punish the actual perpetrators of the crime. The actual practice of the Nuremberg court, which followed this kind of logic, concretized Abravanel’s biblical speculation so as to make it a real precedent in law.
Now, if we accept the validity of human judgment, of a king, as we can judge a king, or any political potentate, who is justly authorized to judge him or her? If judges are to judge him or her, then those judges who can judge him or her now are to be preferred to those humans who might be able to judge him better, but later. Justice delayed is often justice denied. That most effective justice is the justice that can be done at present. Following this logic, it would seem that the optimal judge of such a public criminal would be a court authorized by his own people. In fact, wouldn’t their judgment of their own leader restore their national honor, which the terrorists, even genocidal acts of their leader, had so tainted?
Thus, if rabbinic tradition permits a king to be judged by his own people when judgment is called for, then isn’t this permission, in effect, an actual mandate to judge their king? There’s an interesting debate in rabbinic sources. But, at least one later rabbinic source, the normative one, is that people have a right to judge their king, and this in effect became a precedent during the regicide of Charles I in 1649, although his so called crimes were child’s play compared to what we’re talking about now. Now, wouldn’t the crime of Eichmann, or optimally of Hitler, by the German people have provided the world with the most satisfying form of justice? And wouldn’t a trial of Osama bin Laden by an Islamic court, whose law he claims to be following, be the optimal venue for his trial? Wouldn’t that be an act of supreme theological, political responsibility? Yet, in order for this trial to take place the criminal would first have to be apprehended by his own people. If they could not or would not apprehend him, then they are in no position politically, and probably legally, to try him, as well. The will to justice, that the execution of justice required, seems not to be there in most cases.
We are only left therefore with the court of the survivors, who seem to be the second best alternative, but the only real alternative in practice. Now, a good biblical precedent for this judicial alternative is the execution of the Amalekite king Agag by the Prophet Samuel. The Amalekite were a people who engaged in what we would call terrorism. They indiscriminately attacked, according to Deuteronomy 25:18, “the faint and the weary,” non-combatants, for no military reason. In fact, later biblical tradition saw the plan of the Persian Prime Minister Haman to “utterly destroy” (l’abbdam) the Jews, Ester 3:9, to be the result of his being a literal and spiritual descendant of Agag. He was “Haman the Agagite, persecutor of the Jews,” Ester 3:10.
Now it seems that optimal justice would have been fulfilled if the Amalekites themselves had executed their terrorist king. In fact, Maimonides, who was the only medieval theologian to fully codify the rabbinic laws pertaining to the conduct of the state rules that even the Amalekites would be spared mass destruction by the people of Israel if they would repudiate their terrorist tradition and adhere to universally applicable laws. Two of these laws are the rule that every society judge and convict its own criminals, and that every society prohibit murder. Thus, in order for the nation of Amalek to redeem itself it would have to execute judgment against itself in the person of its leader.
And the fact that they did not do this, and the fact that Saul the King of Israel wanted to compromise with a fellow king, required that the Prophet Samuel, who was the judicial leader of the people try and convict Agag himself, even though this unusual case called for unusual methods of execution. He justified his act by stating to Agag at the time of execution, 1 Samuel 15:33, “Just as your sword made women childless, so may your mother be childless.” Samuel did to Agag what the Israelis later did to Adolf Eichmann, and what the Americans should do to Osama bin Laden, if they ever have the opportunity to do so.
Now, the second difference between private and public murder centers on the question of forewarning, hatra’ah. It will be recalled that if a murderer is tried according to the traditional Jewish law, he or she must have been forewarned by the witnesses to the crime, and that he or she must have verbally indicated awareness of the contents of the forewarning. However, there might be rabbinic sources to enable us to see things differently in cases of public murder, especially genocide, and especially when the leaders under consideration have announced their program in public.
Now, the question is, what kind of forewarning are we talking about? And there is a rabbinic opinion that states, before one can be convicted by the death penalty, that is what we call private crime, one has to have, “permitted himself for death.” Permitted himself for death, what does this rather opaque phrase mean? There are three interpretations.
Number one, it means by accepting the forewarning, yet violating its proscription anyway, the would be criminal has sentenced himself or herself to death. Two, it means that the forewarning could even be uttered by the would be victim to the would be assailant just before the crime is committed. In fact, this is what some rabbis argue Abel did just before being murdered by his brother Cain. Three, it means that the murderer himself or herself forewarns himself or herself, in other words, the would be murderer defies the law he or she knows, violates the victim, whose protected status he or she knows, and takes responsibility for his or her act in advance.
Clearly, such an act of recognition places the would be murderer in the class of what the Talmud calls a defiant rebel, which designates someone who violates the law out of conviction, and not just out of appetite, or even mindless passion. Wouldn’t a public murderer, who like Hitler, or bin Laden, or to a lesser but still culpable extent Adolf Eichmann, who orders public murders out of conviction and who does so because of a publicly stated theology, wouldn’t such a leader qualify as one who is already forewarned? Don’t their very public speeches, and publications, Hitler’s Mein Kampf immediately comes to mind, make any argument about their lack of full awareness ridiculous.
Hence, I think a good case can be made for answering “yes” to this question. In fact, indeed the public murder of a private citizen, conducted by King David, where the king issued his death sentence for Uriah in a secret memorandum, which was certainly not genocidal, the publicly justified acts of Hitler and bin Laden, with their frightening appeals to a law above what most persons would consider to be the natural law of God, seems to fit the joint category of publicly initiated murder, and publicly declared and justified, that is by the political leader, genocide.
In such a case one could make the strongest possible argument for the death penalty that could come out of the whole Jewish tradition of moral and legal reflection for the sake of active justice. Nevertheless, I cannot in good faith conclude without recalling that one of our greatest sages quoted in the Talmud, Rabbi Meir, taught that God Himself suffers even when the blood of the guilty (damam shel resha`im) has to be shed. Perhaps in order to enable human judges to imitate the divine Judge, Rabbi Meir’s teacher, Rabbi Akivah, ruled that human judges have to fast on the day the convicted criminal is being executed. This is, no doubt, meant to be an act of atonement (kapparah) for what is necessary to do for justice, but which is tragic nonetheless.
JEAN BETHKE ELSHTAIN: We are remarkably somewhat ahead of schedule. So we’re going to take questions for a few minutes. We’d be happy to have you come to the microphone, and to offer a question either to Cardinal Dulles or to Rabbi Novak, to both of them in tandem, or each of them singly. So please seize this opportunity, it may not come again.
QUESTION: I had a question for Dr. Novak. According to your argument, you seem to be saying that capital punishment was more symbolic than real, according to Jewish traditions. And I was wondering what that means then in the case of the United States, where it seems to be more real than symbolic. Does that mean we should theoretically according to Jewish tradition abolish the death penalty, since it’s often misapplied?
DAVID NOVAK: I can’t very well say that it should be abolished. One has to understand that the Jewish tradition, both as it applies to Jews and also what the Jewish tradition considered to be universal, perhaps natural law for all societies, does not in principle, as I say, eliminate capital punishment. However, there is nothing that prevents societies, especially a society in which Jews live so happily as the Western democracies, the United States and Canada, for example, the places I live, to be informed, or inspired, perhaps, by the Jewish tradition.
This is the most I can do. I cannot proscribe—the Jewish tradition, actually, for 2,000 years has not had the power of capital punishment, with one exception. That was in Northern Spain in the 14th Century, where Jews did have the power of capital punishment given to them by the Christian authorities. But it seems there that they deviated very much, in fact, they explicitly deviated from Talmudic practice, either because they thought it was inoperable, or because they were required to really in conformity with what was the practice of Christian societies, in terms of capital punishment.
So one has the unique opportunity there to simply make suggestions, and perhaps one can be inspired. There’s a wonderful rabbinic legend that says when Moses was required to write the entire Torah on stones, when the people were crossing the Jordan, the nations of the world sent their secretaries or stenographers, as it were, to take down parts of it. And the Jewish notion was also that one of the reasons that God gave the Torah in Sinai, rather than the land of Israel, is because the Torah was really given for all of humankind. The Jews were required to accept all of it, the nations of the world could pick and choose a little bit, and be so inspired.
So this is the factor that I’m indicating. I happen to be a citizen of both the United States and Canada, and in Canada, of course, there is no capital punishment. In the United States there is. My personal opinion as a citizen is that I think it should be on the books in Canada. And I think it should be rarely, if ever, practiced in the United States.
JEAN BETHKE ELSHTAIN: Next question, please.
QUESTION: This is a question for Cardinal Dulles. You spoke in your hermeneutic of continuity about the only circumstance in which the death penalty could be applied is where the safety of society and the moral order are threatened. And I wonder if you could speak a little more specifically on the circumstances, or the occasion as to when you think that might actually take place.
AVERY CARDINAL DULLES: It is legitimate when it’s necessary to protect the moral order of society. So I suppose one could conceive of a situation in which if justice were not done by executing the offender, the moral order of society would be thrown into confusion, people wouldn’t know accurately what was right and wrong.
But I really don’t know whether that requires more than the fact that it remain on the books, and symbolically, as Dr. Novak would say, the penalty should be there, should be available to have recourse to, because I suspect that the moral order of society can, in fact, be defended other ways just as the safety, physical safety of people against the criminals can be. There’s no particular problem about defending society against the criminal. And I don’t think that is anything particularly new. I think it’s always been true that society had ways of disposing of criminals in a way that they would not be physically a danger to society, in medieval oubliettes, they would throw people into pits for the rest of their lives as something they couldn’t get out of. But the moral order of society, I don’t know, I think it’s sustained by having a right legal order that is respected by the people, and I don’t see that the actual execution of criminals, in fact, is necessary or even advisable to sustain that moral order of society, because of all the reasons I gave, I think that the exhibition of restraint by the government in abstaining from blood punishment when it is justified is more edifying than the actual execution of the criminal.
JEAN BETHKE ELSHTAIN: Next.
QUESTION: I have a question to Novak, and one to Dulles. To Novak, does justifying the death penalty justify the state, and therefore justify war, since war is in the nature of the state? And to Mr. Dulles: Jesus wipes out government in Mark 10:42-43, negating rule, lordship, authority. No state means no death penalty. Contrast this with Romans 13:1 to 7, which reads like the beginning of the Declaration of Independence. How do you reconcile no state Nazarene with law enforcement Pauline?
JEAN BETHKE ELSHTAIN: All right. Rabbi Novak?
DAVID NOVAK: In terms of the conduct of war, I think that one has to make a distinction there, and the distinction is that the usual justification for the state going to war, which Christians coming out of Augustine have referred to as the just war tradition, and in the Jewish tradition it’s pretty similar using perhaps another term, that war is an act of self-defense. Now, an act of self-defense in two ways. It’s an act of self-defense of life, that is one does not go to war unless one has been attacked or is in imminent danger of being attacked. It’s also a self-defense in terms of liberty. That is, states are justified to go to war even if the enemy is going to capture them and not kill them. There’s going to be a loss of liberty, liberty is considered to be a right that one can defend even if violence and killing is involved.
Now, what I was attempting to was indicate situations where you have states, defined loosely, even if it’s a band of pirates, who have designated killing, especially killing by members of a group, as being what Hannah Arendt called in the case of Eichmann a “crime against humanity committed against the body of the Jewish people,” which conceivably could be another people as well. These are distinctions which have to be made; when Professor Budziszewski, who is on the program a little bit later, and I were on National Public Radio, and he made a wonderful point there when somebody called in asking a question about the abuses of capital punishment power. He said the fact that there are these abuses means that we should not eliminate them, they have been grossly abused, and because of their abuses, I think we should be more careful than ever in terms of matters like capital punishment. But, one has to make these fundamental distinctions in principle which have real differences in law and practice for the sake of justice.
AVERY CARDINAL DULLES: Well, I don’t have the text with me, but I’m quite sure Jesus is not eliminating the state by any means. Does anybody have a Bible here?
(Laughter and applause.)
JEAN BETHKE ELSHTAIN: Here we go. The Cardinal is serious about hermeneutics.
AVERY CARDINAL DULLES: [Reading:] “You know that among the gentiles, those who recognize their rulers, lord it over them, the great ones are tyrants over them. It is not so among you. Whoever wishes to become great among you should be your servant. Whoever wishes to be first among you shall be the slave of all.”
Fine, I think that the authority of the state was seen as service. But that does not eliminate the authority of the state by any means, any more than it eliminates authority in the church. Authority in the church is service, likewise, and that those who serve in church, whether in positions of responsibility in the church, or in positions of civil society, must see their authority as one of service. It doesn’t mean that a judge, or a king, or a president, or whoever, does not have authority. On the contrary, I think he’s instructing the apostles as to how to exercise their authority in the church. So I don’t think there’s any text in the new testament that does away with the authority of the states, or even the authority of the state to exercise the death penalty.
When Jesus speaks of Pilate as having authority over him, he says, you wouldn’t have any authority unless it were given to you from above, although I think he’s warning Pilate not to misuse his authority, but not denying the authority that Pilate has.
JEAN BETHKE ELSHTAIN: It would be a little difficult to render unto Caesar if there were no Caesar.
It’s time to continue our discussion of faith traditions and the death penalty, and we’re going to begin with another distinguished scholar. He’s distinguished not only for the quality of his thought, but for the quality of his prose. It’s always a pleasure to read Gilbert Meilaender, who is here to present The Death Penalty, A Protestant Perspective. Professor Meilaender.
GILBERT MEILAENDER: Thanks very much, Jean. And thank you to the Pew Forum for this occasion. One generally says something like, I’m glad to be here, or I’m pleased to be here. I’m not actually sure that’s quite the right formulation today. But, there are some senses, anyway, in which I’m pleased to be here.
I begin with an illustration that gives rise to a puzzle. Suppose that the police have tracked down the infamous leader of the Cavendish Gang. That’s actually not a name chosen entirely at random, if you are old enough and happened years ago to be a devoted viewer of the Lone Ranger, you would recognize it. But, anyway, suppose the police have tracked down the infamous leader of the Cavendish Gang. A man who has boasted of his responsibility for the murders of at least eight innocent people. They have him trapped in a building, and he tries to escape out the back door of the building. Police sharpshooters gun him down and kill him. I doubt, actually, that there would be very much public criticism of the police for that action under those circumstances. No criticism despite the fact that Cavendish was never charged with murder, never tried or found guilty in a court of law, despite the fact that he had been given no chance to have a lawyer argue his case, point to extenuating circumstances, or even plead insanity.
Suppose on the other hand, the police had managed to capture Cavendish as he fled out the back door and that he had been tried, convicted, sentenced to death, and executed. How much less acceptable this would have been to our contemporary sensibilities, so great is our horror of that hint of the religious which the cool process of judicial execution contains.
Is it not puzzling that we should accept his death in the first instance, a death that occurs without any benefit of judicial proceeding, and then at least some decent number among us should be appalled by his death in the second instance? This puzzle is worth reflecting on, and I’m going to return to it before I end my remarks, because in a sense I think it actually gets to what I think is most important, but it’s going to take me a long, meandering way to get there.
I want, at the outset, to emphasize two things about my Protestant position, as I am calling it. The things that should probably be obvious, but they also should be emphasized. First of all, I am presenting a Protestant perspective, at least if we are speaking descriptively or empirically. From that angle, the Protestant perspective from an empirical perspective, the Protestant perspective does not exist. It’s just as important, however, perhaps more important for a Protestant to emphasize at the outset, and here I say something not unlike what David Novak said, that one does not do Christian ethics by taking a survey of the opinions of Christians, or even in this case a survey of Protestant churches. One can speak normatively on behalf of the church only if, in Karl Barth’s words, in all humility one is willing to risk being such a church in one’s own place, and as well as one knows how.
The second thing that needs mentioning is that I, myself, think that it’s a mistake—I mean it’s a controverted point among Protestants, but I think it’s a mistake—to suppose that there should be some uniquely Protestant position on every question that comes along. Protestants are, at least in the way I think of it, Catholics with just a bit of a twist, with some special concerns, concerns that are sometimes important. But to try to build an entire theological position on those special concerns, the sort of special things, to imagine that one could do that without the extensive structure of the classical Christian faith that underlies those special concerns is folly. And I think the Protestants that try to do it end up with folly.
Protestants, therefore, have to recognize that the church has generally taught that duly constituted governments have the right under certain circumstances to execute offenders. And when Rome sort of toys with the notion of forgetting, then we have the duty to remind Rome of the tradition of the church. The death penalty has not been forbidden. This does not mean, of course, that it has been required, or that the church should not ask that mercy temper justice. Indeed, it’s been sort of a regular understanding that that was an Ecclesiastical responsibility.
But the truth has to lie somewhere between a mistaken view that the death penalty is prohibited, and a mistaken view that it is required. I don’t mean in some particular case, but I mean as a matter of general policy. It is simply permitted. I have come to believe that the greatest danger in discussions of the death penalty is something that goes well beyond the issue of the death penalty alone, it’s that we may end up adopting viewpoints which turn out to undercut the very rationale for government, or punishment, or justice entirely, and that’s where I want to begin.
If we avoid those dangers, we will be in a position to see what might really concern us about capital punishment. My opening illustration was designed to point to what I think that real concern is, and I will come back to it eventually, but first I want to try to situate my discussion of the death penalty within a larger framework of an understanding of government and of punishment generally.
If and when a state inflicts any punishment, certainly the death penalty, on one of its citizens, it is imperative that such action be understood as public, not private, action. For Christians this is because the state, by God’s ordinance, is authorized in certain circumstances to serve the common good by punishing, even perhaps by taking the life of a duly convicted criminal. When God makes his covenant with Noah after the great flood promising never again to destroy all flesh, this promise is fulfilled in part through government, which by executing just punishment enacts fitting retribution for crimes. Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image Genesis 9 says, and that’s a passage that was regularly cited by theologians to depict the institution of government, and the authority delegated to it by God.
And the law of retribution articulated there is not the civil law of ancient Israel, it would be better called moral or natural law, something like that, specifying, as it does, fundamental truths about human life. There is to be sure something paradoxical about this law of retribution, and we should note really not just about that law of retribution, but about government in general. Retribution is required because the victim bears God’s image. But, of course, so does the murder. It might seem that by punishing the murderer in order to honor the image in the victim, we simultaneously demean the image in the murderer. But that is, of course, the paradox of all governmental retribution. And it is precisely why it is so essential that we understand civil and criminal punishment as public retribution, and not private vengeance.
In killing his victim, the murderer has demeaned the image of God in one particular way by means of an act that was private. In executing the murderer, civil government carries out a different kind of act, one that is public.
The other passage that has played a major role in Protestant reflection is Romans 13, already mentioned this morning, where St. Paul writes that government bears the sword as the servant of God to execute wrath on the wrongdoer. So what none of us is permitted to do as private citizens on our own authority, the state may do, not because it is, itself, lord of life and death, not at all, but because it is the authorized agent of the God who is that lord.
So, for instance, J.M. Reu wrote in a very old, what was once sort of a standard Lutheran text called interestingly “Christian Ethics,” not “Lutheran Ethics”: Punishment of criminals is not to be considered as an act of revenge on the part of the community for the wrong committed, but as a solemn act on the part of the government to uphold the majesty of the law.
Now, one might argue, of course, that to think of the matter as settled by teaching drawn from passages of Scripture like this would be to overlook other central theological themes, in particular Christian teaching about forgiveness, and I want to think about that for a minute. This sort of move is not at all uncommon among contemporary Protestant thinkers, and I’m going to offer here two examples from such Protestant thinkers, and brief comment on each.
One theologian writes this: “Informed as I am by Christian sensibilities about forgiveness, I think that the role of courts is to identify the crime, establish the extent of culpability, and impose punishment, but only for the sake of prevention and restoration, not for the sake of retribution.” Now, that is, if I may say so, at least as puzzling as honoring the life of the victim by taking the life of the murderer. Evidently Christian sensibilities about forgiveness do not actually require forgiveness, since something called punishment is permitted. So, what difference do these Christian sensibilities make?
Well, it’s not at all clear. The most charitable interpretation is to suppose that the author simply means that when we punish, our motives should be something other than revenge. But, as I have already noted, that is actually built into the traditional position on punishment and on the death penalty.
A less charitable interpretation would be to suppose that the author wants punishment grounds, actually the rationale for punishment in prevention and restoration rather than retribution, in which case he is going to face some very old difficulties about why, in fact, only the guilty must be punished, difficulties that I will spell out more fully in a moment.
Perhaps sensing that he has not really taken seriously the spirit of forgiveness to which he has appealed, the author goes on: “Should the advocates of forgiveness and reconciliation pardon persons who have committed atrocities and have publicly been found guilty, but in whose case we are sure that they would not repeat their crimes?” That is to say prevention and restoration are irrelevant in these cases. Well, that’s exactly the right question to put to his view. In such cases, when neither prevention nor restoration is required, it would seem that forgiveness ought to end the matter. But it does not for this author, “Simply letting them go,” the author writes, “would certainly be wrong, it would be a form of cheap grace, and therefore in the end no grace at all.”
Here’s a second example from another Protestant theologian who writes: “Christ takes our sin and frees us from it. Some of us may have a more immediate need of rehabilitation, or more need to be prevented from doing harm to others in the short run, but according to Christian faith, it makes no sense to think of distinguishing the innocent from the guilty. Apart from Christ, we are all guilty. In Christ, we can all be found innocent. We may need to be helped, both by being protected from doing further wrong, and by being helped to be better. But there is no reason to punish anyone.”
Now I, myself, doubt whether there is a theologian alive who in his or her capacity as, say, father or mother, would raise children in accord with such a theory. Moreover, I would not want to spend much time in the company of children who had actually been raised in that way. And we should not pass off as theological wisdom a view that we would not actually be willing to live by. The difficulties with such a position are several. Even more than my first example, this theologian will face those very old difficulties about theories of punishment. If the point is, as he thinks he believes, to provide therapy for those who need to be helped or kept from doing harm, then there is no need at all to provide this therapy only for those who actually wrong someone, nor is there any need to try to make the punishment/therapy in some sense fit the crime, be proportionate to it. Within a retributive understanding of punishment, it makes some sense to have a concept of punishment that would be unjust because disproportionate to the wrong done and, hence, not really proper punishment. But with therapy, which alas turns out to be just as compulsory as punishment, proportionality makes no sense.
Instead, we simply need a treatment that cures, that achieves its aims. It is as the philosopher Herbert Morris pointed out in a wonderful essay years ago, it is perfectly reasonable to give someone who kills a pill, and to treat for a lifetime within an institution someone who has broken a dish and manifested a proneness to such accidents. You simply seek the cure that works, that gets the treatment accomplished.
Those who live through a decent proportion of the 20th Century ought to know that a society can achieve control, perhaps even more total control, through a system of reeducation than a system of punishment. In fact, looking back on the last century, we can say that because, and I’ll quote Oliver O’Donovan here, “that because a system of punishment is an institution through which force is used retrospectively and only retrospectively against those and only those who can be shown to have offended, it is a form of control which betrays a high degree of civilized concern to limit the damage of governmental coercion.” I would be sorry to see Christian theology, even by good Protestant theologians, put in the service of a more totalitarian and less civilized organization of government’s power.
But the problems with this passage that I read from my second exemplar go well beyond those sort of standard philosophical issues about punishment, they are also theological. Reinhold Niebuhr distinguished, I think very helpfully, between what he calls the quality of sin that we all share before God, and the inequality of guilt that is ours in the world we share with our neighbors. It is peculiar to find theologians who would no doubt think that earlier ages of believers had under-appreciated the significance of earthly life in their single-minded devotion on the life to come. It is peculiar to find such theologians themselves seeming to imply that the only context in which to talk about sin and guilt is quorum Deo, before God, and not also quorum humanibus, before other human beings. Before God, to be sure, we are all equally sinners, and we should all be charged to make our confession regularly. But some of our sin brings much greater harm and destruction to others. For that, we are guilty and responsible. A failure to make such distinctions will leave us unable to say everything that needs to be said about wrongdoing, punishment, and even forgiveness.
Another way to put my point theologically might be as follows, Christians do want to say that in the death of Christ and the penalty visited upon him, we see the end of this temporal order of human life sustained as it is by the power of God. And Christians do want to say that. Christians also want to say that until God fully manifests that end, he wills the continuation of this temporal order toward the kingdom of Christ. Now, how to manage the intricate simultaneities required to say both things is never very easy. I mean, it’s a standard theological difficulty. But it will surely always be insufficient to talk as if since the death of Christ, Christians could find no reason to punish anyone.
There is, in short, good reason to think that the received Christian wisdom about government and punishment, and even about the death penalty is well grounded. Until the end of history, government exists as God’s servant to sustain ordered human life, in part by fitting punishment of wrongdoers. It is permitted, though not required, that such punishment should, in certain cases, extend even to execution.
Now, of course, many of our fellow citizens will not understand the work of government in terms grounded in Genesis 9 and Romans 13. Some of them will even think that we shouldn’t talk about those passages in public. As a people, we are more likely to think of government in terms of the social contract theorists taught us as founded to stop the injustice that dominates a state of nature, but founded by our own compact. Even in these terms, however, the distinction between public and private action is still crucial. The world in which each of us is permitted to judge guilt and execute punishment, in which revenge and blood feuds are permitted is likely to be precisely the one Hobbes described in which the life of man is solitary, poor, nasty, brutish and short. It will be world given over to injustice.
When, therefore, the state punishes, when it even executes a convicted murderer, it is essential that we not think of this as responding to the desires of family or friends of the murderer’s victim. We are all aggrieved when one of our fellow citizens is murdered, and the criminal’s punishment, even perhaps execution, satisfies our need not for therapeutic closure, but our need for a just society.
Now, opponents of the death penalty will rightly note there is something paradoxical about punishing the taking of one life by taking another. I mean, I think it is right to note that. But, of course, the takings are not quite the same. One is done by a private individual acting simply in his own name, the other is done by public authority acting in the name of us all. The force of the objection depends precisely on blurring or missing the difference between private and public action. Moreover, this paradox, if we are given to such language, is only the paradox of government generally. Through criminal law, government defends freedom by imprisoning lawbreakers, and through civil law it defends our property by imposing penalties on those who have harmed it.
Suppose, then, a murder has been committed, suppose perhaps even many murders have been committed in terrorist action by a Timothy McVeigh—I hate to sort of pick on him, but it’s a standard example. Under such circumstances, it is hard for me to find the argument that execution is not a permitted even appropriate punishment. I suspect that many opponents of the death penalty find it a little hard in that sort of case as well. That is why in McVeigh’s case, the argument quickly turned in other directions. In particular, to whether families of the victims should be permitted to view his execution. Why just the families some asked, why not all of us? Shouldn’t we see what we are doing, and judge whether we really have the stomach for it?
This argument in the mouths of death penalty opponents committed to the sanctity or at least equal dignity of every human being comes perilously close to suggesting that we should use an execution of one of our fellow citizens as a means to desired ends. We should reject even the faintest whiff of that idea.
There is, moreover, no reason to have any confidence that making a media event of an execution will engender clear and careful thought about the meaning of the death penalty, but neither is there good reason to use the occasion of an execution to provide therapy for those who have been terribly and no doubt irreparably hurt by the murderer’s deed. The intimation that a civil society which thinks of itself not from above as God’s ordinance, but from below as a social compact, needs somehow to take responsibility for its public action, even for executing one of its citizens is sound, I think. Equally sound, though, is the intuition that providing therapeutic closure for families begins to lose the crucial fact that we execute because and only because our public order has been wronged.
I have found myself wondering whether we might not do some justice to the truth of each intuition by requiring at executions a public presence of randomly selected citizens, something like a jury. They would not, in their private capacities, have been harmed by the convicted murderer, no one could suppose that we were executing a murderer in order to provide them with some private healing, but their presence as the representatives of us all would teach us something, would bear witness to the fact that an execution is not a claim that some of us are more equal than others, but rather that as a public act of punishment undertaken by a legitimate state. It’s a different kind of deed altogether. We do not pull rank when we do it because we do not act and are not present in our private capacities.
All that said, perhaps there remains one reason why we should not execute, not even execute a terrorist such as Timothy McVeigh. This at least seems to me the most compelling consideration, and we can reflect upon it by recalling the hypothetical example with which I began. Why are we or really not all of us but some among us, why are some more troubled by the judicial trial and execution of Cavendish, which has, after all, given him all the benefits that our legal system provides a defendant, than we are if he is simply shot by the police while attempting his escape?
To think about that drives us toward the most fundamental reason why I think we hesitate before the death penalty. We hesitate to think of any human court of judgment pronouncing the last word on another human life, even one as vile as that of my hypothetical Cavendish, and if you watched the early episodes, you’d know just how vile he really is. There is the hint of something religious here, something from which we draw back, perhaps partly in humility and awe, partly in horror and fear. I had the sense that there was a time when a judge pronouncing a sentence of death would say to the condemned person, may God have mercy on your soul. Perhaps that has, in fact, been done, though. Inquiring of several lawyers, I was told only in movies. Whatever the facts, it directs our attention to something important.
Perhaps counter-intuitively, and certainly contrary to what we know many religious folk, many of my fellow Protestants might suggest, I think the death penalty would be least problematic in a genuinely religious society. Camus suggested insightfully, I think, that capital punishment could be justified only that there was a socially shared religious belief that the final verdict on any person’s life is given by God, not by us. In such a society, it would be clear that even in executing one of our fellow citizens, we do not pull rank. We would know that our verdict could be overturned at the ultimate tribunal. In such a society, it would make good sense, having sentenced a convicted man to death, to add, may God have mercy on your soul.
What of a society in which this could make no sense, and I make no judgments about whether we reside in such a society. In it, Camus thought, execution could only mean elimination. Elimination from the one community acknowledged by all to exist. And, of course, if execution, if, if execution is equivalent to elimination, it is, indeed, a God-like act. This, at any rate, is the point that seems to me to really demand our attention. To the degree that in our public life as a people we decline to speak of God, it may be that we, as a people, ought not inflict the death sentence. But it would be very unfortunate, indeed, if in our debates about the death penalty we lose the capacity or are assisted by Protestant theologians to lose the capacity to articulate clearly the meaning of government, of punishment, and of justice.
JEAN BETHKE ELSHTAIN: Ladies and gentlemen, we have to do something a bit different at this point. Our distinguished Islamic scholar, Professor Khaled Abou El Fadl of the University of California-Los Angeles Law School cannot be physically present to us today for security reasons, and precisely for security reasons I can say no more than I’ve just said. Although don’t rush to any judgments about what the nature of the threat is, nor who is doing the threatening, but as I said I can say no more. Because he was determined to participate and we were determined to have his contribution, he and his assistants and our able group here have found a way to facilitate this. So, we’re going to have him on a direct line, he is going to speak his comments into the line. They’re going to be broadcast to you with the speakers in this room. And then during the question and answer period, I will relay to him through this instrument here any questions that you have for him. So, we are hoping that this will all work out, and that we will be able to hear Professor Abou El Fadl address an appraisal of the death penalty in Islamic law. So, here we go.
KHALED ABOU EL FADL: Thank you very much for doing this connection. This is the first time that I’ve lectured this way. And, I’m sorry that I couldn’t be there in person because of recent rather high profile positions that I’ve taken, and so on, there have been some fairly serious security concerns, and I have been advised by police enforcement to avoid traveling these days, or to avoid being away from a secure home base to use the technical jargon.
In any case, to make the best of that situation, on the issue of the death penalty and the ability of the state to terminate a life, Islamic theology, one ought to preface the discourse by saying that in the Islamic tradition it is not simply an abstract theological tradition, but because of the fact that it is a tradition that been enforced to various degrees of effectiveness through a long historical period, it is a rather complex and diverse, and un-unified tradition. So, the preface is that one ought to be cautious before talking about an Islamic position vis-à-vis the death penalty or capital punishment, because the Islamic historical practice, and the practice of Islamic law, and the development and evolution of Islamic legal doctrine on this matter is remarkably diverse, and un-unified, and in many ways unsystematic.
Now, having said that, there are, one could say, particular foundational premises that inform the discourse. And the way it was usually approached in Islamic juristic discourses, as well as its possible trajectory in the modern age. I actually start with the story of Cain and Abel. One of the interesting points about the way this story is addressed in the Koran is that, as all of us are familiar with the basics of the story, but Cain attempts to, or murders Abel, and in Jewish theology it has various—the notion of blood and soil and contamination of the soil with blood and all that has a very particular meaning and connotation.
In the Islamic tradition, particularly in the way it’s talked about in the Koran, Cain is about to kill Abel, and able kills Cain. You are seeking to murder me, and even if I could I will not extend a hand or make any attempt to murder you, although you are trying to murder me. So in other words, Abel refuses to terminate Cain’s life in order to preserve his own. All the issues about soil and contamination with blood and all that is missing in the Islamic tradition. The main core is this idea that Abel refuses to save his own life at the cost of taking Cain’s life. And of course, Muslim jurors have often discussed, whether this story embodies a normative principle for Islamic law or not, whether, in fact, it is not as simple as saying that in order to preserve life you may, in fact, terminate life, that this is an equation that is not simply—that ought to be followed, or ought to be integrated in Islamic thinking without nuances and various complexities added to it.
So then there are, in the Koranic discourse, beyond the story of Cain and Abel, we find that there are various articulations and pronouncements directed at murder and punishment, but not necessarily mandating execution or the death penalty as a recourse. So the Koran repeats what we find in the Old Testament, that God has decreed that whoever murders a soul, it is as if he has murdered all of humanity, and God has decreed that whoever saves a soul, he has saved all of humanity. So that part of the discourse is in the Koranic text, and it has created sort of a normative imperative for Muslims jurists to struggle within various parts of Islamic history.
Then there is—the Koran comes in and explicitly says that soul of a human being is sanctified by God. Don’t murder the soul that God has sanctified. The word is harema. And incidentally, it’s the same word that the West knows as harem, that God has rendered sanctified. Harema or harem is a word connoting sanctification and special status. And it says that God has sanctified the soul, and therefore it is a grievous offense that you take it away.
Now, when it comes to the actual, talking about punishment, the Koran presents a rather interesting nuance and attention in the text. So on the one hand it says that punishment, the word which in Arabic literally means to punish, to exact retribution, basically means to exact retribution, let’s go with that. It says that your ability to punish offenses is, in fact, a grant of life, is the way it expresses itself. In other words that it is, in fact, necessary for you to sustain life that you be able to punish offenses.
But when it comes to talking about the ultimate punishment, capital punishment, it talks about intentional murder, and it says that in the case of intentional murder there are three options. One option is that the family of the victim would demand compensation is not the right word, but effectively a sum of money in compensation for, and that would be it. So basically the family would demand a sum of money. The second possibility is that the family of the murderer demand exaction, i.e., then the offender would be killed. And third is to forgive. The family of the victim would forgive. And it’s quite interesting here, the Koran goes on to say, in the same verse in which it endorses the three part structure, it says, and those who forgive are higher in the sight of God.
Now, of course to the idea to have murder, an intentional murder, to leave the remedy as a private remedy in the hands of the family of the victim, and to even say that if you forgive it’s at a higher moral plane is difficult for, or sounds problematic for a legal system that is interacting with reality at a social and political level. In other words, a legal system that is, in fact, being enforced. And so Muslim jurors arguing about or debating what this verse mandated broke into two main schools. And it has been pretty much left at that.
One school effectively—and here I have to introduce a new concept that is a bit abstract, but it is very necessary to understand where the Islamic tradition, or how the Islamic tradition approaches this—the one school basically argues that since God has mentioned murder, and what to do about murder in the Koran, it is as if God had declared this field to be God’s own. And therefore, what we do about murder is hence declared to be among the rights of God, what are called ________[Arabic spoken]. Now, because it is in the realm of the rights of God, and because God has effectively said, this area of life I am not leaving to the discretion of human beings, I sanctify life, so I also mandate what happens if life is taken away. It’s as if God becomes possessive over this.
Then it becomes among the realm known as halal law, not just the rights of God, but halal law means the outer limits, the boundaries that God has necessitated and decreed, and set out. And because it is among those boundaries, human beings may punish, may, in fact, carry out the law, but on the condition that the law must be carried out per the procedural and evidentiary, and structural rules and conditions that God has set. In other words, you have to prove the case, carry out the punishment in the case, per the exact rules and process, and procedure that God has decreed. And if you are unable to do so, then you must err on the side of non-finality, or non-decisiveness of result.
So to make this a bit more concrete, because God has decreed this area to be God’s own, the area of life and what happens when a life is taken away, if you, in fact, punish with the ultimate punishment, the death penalty, you must prove the case per the ways that God has decreed that you prove these cases. Otherwise, you cannot implement the death penalty. And what this amounts to was effectively saying that what is required in order to implement the death penalty is a level of certainty, of evidence, that is quite impossible to fulfill.
It was quite clear within this school that, from a sociological perspective, that they thought that, well, fine, but if we are going to take a life, it has to be in these situations where we’re absolutely certain that, in fact, a person has committed murder, otherwise, you must err on the side of other remedies, whether it’s money, or later on in the school they talked about exile. They used to exile people to an island off the coast of Saudi Arabia known as Fedad [sp], that island still exists, there are no exiles there now. But, et cetera, et cetera. So that’s within the first school.
The second school basically thought that is it not practical that God would basically say you only—when it comes to execution or comes to capital punishment, it must be enforced according to this remarkably demanding evidentiary standard, otherwise you cannot do it. They thought that this is very disruptive of the public order, and so on and so forth. And so effectively what they ended up doing is that they argued that regardless of the dispensation chosen by the family of the victim, that the state maintains a residual right to punish, regardless of what the family of the victim does. And this obviously was the school that was chosen by many judges, and jurists who worked in bureaucracies and governmental administrations.
The first school was primary presented by jurists who worked as professors, and religious counsels and so on, and so forth. So effectively the family of the victim has a decision to make, whether to forgive, to demand compensation, or to demand exaction, but nevertheless, whatever the family of the victim does the states retain residual rights over the matter, and the state, in fact, may choose to pursue capital punishment, even if the evidentiary case against the offender is not as precise as the Koran demands it to be.
Now, I would finally say that in contemporary Islam what is certain is that the discourse, the debate has this classical, the argument about the precedent of Cain and Abel, about the notion of the soul being sanctified by God, about the idea that if God has given life dare you take that life away without absolute certainty that such is what is right in this particular case, and then the sort of next step of saying, well, really, there is rarely a situation in which we are absolutely certain that we are justified in taking a life away that God has sanctified. One thing is quite clear in the contemporary Islamic tradition, all of this discourse, and all of this debate doesn’t exist anymore, in the sense that you do not hear any serious discussion, either at the level of Muslim nations, or at the level of Muslim private jurists and scholars, talking about this issue in any serious way.
This is partly because contemporary Islamic countries have come under the very heavy influence of the French legal system, the civil law system. And at the time that they adopted the French criminal code, pretty much en mass, most Muslim countries adopted the French criminal code, particularly the Napoleonic Code, the death penalty was, of course, not an issue in the Napoleonic Code. And the debate or the discourse was not rekindled at a moral level from there on. My own, as a Muslim jurist, my own inclination is that when one deals with life, you could probably sense from just what I’ve said, I have greater sympathy for the first school of thought than the second.
It does very much to me seem that a fair reading of the Koran would lead to the conclusion that the soul of a human being is not just sanctified by God, but is in fact a part of God’s breath. The Koran says quite explicitly that God created human beings, and put into them, or put onto them a part of God’s breath. And to reach the conclusion of termination of that divinity requires that one reach a level of not just evidentiary, but a certain degree of moral certitude. And that moral certitude, although my position is not unequivocal and sort of categorical, but I find it difficult to hypothesize, to imagine abstractly a situation in which one would be so sure at a moral plain that the snuffing away or the taking away of that breath of God is justified. And that’s where I find myself on it. But, admittedly, this opinion more reflects the classical, or at least one school of thought within the classical tradition than it reflects contemporary Muslim orientations on reconstruction upon the Islamic tradition.
And thank you very much. And, again, I really do feel terrible that I can’t be with you. I think that just for the sake of preservation of life these days, it might be the moral thing to do is to not travel. Thank you very much.
JEAN BETHKE ELSHTAIN: Thank you. Perhaps you were able to hear, Professor Abou El Fadl, the appreciation being expressed by the assembled company. We’re going to go to the question and answer period, and if there’s a question for you, I will make certain that it is repeated so that you can hear it if you don’t mind standing by for the Q&A. All right. Folks, we’re now ready for our 40 minutes, precisely 40 minutes, of question and answer. Again, the microphone in the center aisle here. Those of you in the overflow rooms, if you want to fight the crowd and make your way here, you’re welcome to join the queue. I’m not going to be optimistic about your chances because I think there will be quite a good company from this room, but you are welcome to come up here and join the queue.
Again, if you have a question to a specific person, please indicate that. If it’s for the panel as a whole, including the speakers this morning, they’re all here, as you know. So questions can go to any one among them or to all of them to this good company. So, with that, we will go to our first question, and please, again, indicate to whom it is directed.
QUESTION: Thank you. This question is primarily for Cardinal Dulles, but also Dr. Meilaender. Cardinal Dulles, if I understood you correctly this morning, you want to fit the contemporary Catholic position against the death penalty within its traditional teaching that sanctions it. And to do this, you maintain that on prudential grounds, the conditions for a just use of the death penalty would rarely be met in contemporary American and Canadian society.
According to the traditional teaching, retributive justice is the primary purpose of punishment. Yet, in your analysis of the use of the death penalty today, you mention only public safety, and the moral health of society. Because public safety and the moral health of society can be safeguarded without the death penalty, the death penalty, while perhaps remaining on the books, should not be used, or rarely used.
My question is, what happened to retributive justice? The older teaching did not understand retributive justice in terms of public safety or in terms of the moral health of society. In fact, it said to meet the demands of retributive justice, the traditional position maintained that the death penalty was necessary. So, if we’re to understand the contemporary church’s teaching on the death penalty as consistent with the tradition, wouldn’t we have to explain how retributive justice today can be met without the use of the death penalty? And this, I don’t think your position, which I think faithfully represents the Pope’s position, has been met.
JEAN BETHKE ELSHTAIN: All right.
AVERY CARDINAL DULLES: I think that the retribution has to do with the restoration of the order of justice in society, that does require a certain punishment of the offense, in accordance with the gravity of the offense. Now, it might, I suppose, under certain circumstances require the death penalty be actually enforced. But I don’t think that’s shown to be necessary for adequate compensation for the restoration of the violated order of society, and a reestablishment of an order of transcendent justice.
I included that under the notion of public order, then. I think retribution can be fitted under that rubric. And therefore I tried to build in the notion of the retributive purpose of punishment, where it is necessary to establish the transcendent order of justice. Actually, the full retribution can only be given by God, who alone knows the human heart, and knows the degree of guilt that the person has. And I think that the retribution administered by the state is largely symbolic, and instructional to enable people to appreciate that there is an order of divine justice, and to fear it, and that can be done, I think, with other means of punishment. But, it should be genuine punishment, that is depriving the individual of some good, that could extend to the good of life itself, but whether it needs to depends upon other considerations.
And I tried to say that for certain reasons why I think that it does not require the actual execution of the defendant, but other means of just punishment can suffice for the restoration of the order of justice, or for retribution if you like. So that’s my effort to respond to your question. I wasn’t trying to eliminate retribution, by any means.
JEAN BETHKE ELSHTAIN: All right. Yes, next.
QUESTION: My question is for Dr. Meilaender, and I might just ask you to respond to Cardinal Dulles in his comments. But, I’ll ask my specific question. As I listened to your lecture, as you laid a groundwork to justify the death penalty as the appropriate retributive action carried out by the public authority, you seem to be disagreeing with Cardinal Dulles that the failure to impose the death penalty in certain situations does actually disrupt or harm the moral order of society. Is my impression of your position correct, and could you expand on that?
GILBERT MEILAENDER: I probably was disagreeing with him to some degree, that’s right. I think it was Tillich who said never say only a symbol. And I don’t think that dealing with it in those terms is adequate. But, let me try to sort of say a couple more things.
If we once acknowledge that retribution is integral to punishment, and it seems to me that the position, actually less so Cardinal Dulles than the Pope has been putting forward, really has made it hard to know for sure whether that’s still being affirmed. But, if we once acknowledge that retribution is essential to punishment, then we just have to talk about cases, and think about whether there are cases in which is seems as if execution is really the proper punishment that fits the crime. So if you once acknowledge that retribution is involved, then we have to think about that.
The second thing I’d say is, I mean, on the list of my moral concerns, preserving the death penalty is by no means near the top. I have a lot of other things that worry me more. But speaking just theologically now, what concerns me, and I tried to flag that in what I said, is a case against the death penalty, or at least raising questions about the death penalty, it seems to me in its structure to actually begin to raise questions about our understanding of government, punishment more generally and so forth. That’s the concern. And insofar as I understand the direction in which the catechism revision, for instance, for the Catholic catechism went, I don’t think it’s wrong to have that concern, and that maybe Protestants can help by articulating that concern.
QUESTION: In the Timothy McVeigh case, how would the failure to execute him in that situation disrupt the moral order that we are trying to have?
GILBERT MEILAENDER: It would disrupt it if you thought that any punishment other than that failed to respond appropriately to the degree of evil in the crime. That’s what disrupt means there, I think. It doesn’t mean makes it impossible to sustain public order or something like that.
QUESTION: My question is for all of our guests, and it concerns the contradiction between the traditional moral view towards issues like the death penalty, and how it contradicts with the emerging current moral view. It seems to this problem a theologian has two solutions. One is to try to reinterpret the traditional moral view, to accommodate the new emerging view, or the second solution would be just to say that it is wrong and to abandon it.
And my question is, in the first case it seems, especially when the traditional moral view is pretty explicit. It seems like any attempt to reinterpret it would seem a bit strained. And thus, I was wondering, why that solution is preferred to the second solution of just abandoning it. And concerning issues like this, to ask the question from a different point of view, what circumstances would it take for a theologian to abandon the traditional view?
JEAN BETHKE ELSHTAIN: And the emerging view, I take to be abolition of the death penalty, is that what you’re characterizing as the emerging view? All right. Rabbi Novak, I will ask you to start with this one.
DAVID NOVAK: Yes, I mean, if one comes from a tradition, and I would even argue that this could be the only coherent definition of a tradition in the strong sense, which makes it claims based upon revelation, that is the tradition is a transmission, and by the transmission an ongoing interpretation of revelation, as the oral Torah as the ongoing interpretation of the written Torah, Scripture, means. Then of course, one can never say that that which has been mandated in revelation is wrong or unjust, because if one makes that kind of a judgment one has just put one’s tradition out of business, in effect, in terms of its moral authority.
That being the case, we can still very much ponder what the true intentions of the law are, which you’re always second guessing the divine law giver, but nevertheless, take that into consideration in terms of our interpretation of the law, and that can very much affect its interpretation. Always recognize, and the difference—so what is the difference? We don’t have any capital punishment, for example. The difference would be, it’s a recognition of the fallibility of human justice. And it means that our judgment of what the intention of what divine law is, and how it cannot be applied is tentative. And it can be overruled by subsequent generations. That means that we pay proper respect to revelation. We also recognize the role of human judgment and the fallible role of human judgment. But, for me to exercise moral judgment upon what I believe to be the law of God means that I’ve just trumped the law of God. And therefore, in effect, committed an internal contradiction.
These are the ways in which one lives as part of a tradition, based upon revelation, and one of the things that the contemporary philosopher Alasdair McIntyre, who was also a Roman Catholic, by the way, have argued is that all of us are part of traditions, and that there is only a certain type of contemporary or modern views of a certain type of liberalism that claims not to be a tradition. So, therefore, I think the problem of traditions interpreting themselves, reinterpreting themselves, and yet remaining faithful to a founding event is something that we all have to deal with. But I don’t think that it’s a problem that anybody in any tradition can avoid.
JEAN BETHKE ELSHTAIN: I’m going to put your question to Professor Abou El Fadl, whose arm is probably going numb at this point from holding the phone. Professor Abou El Fadl.
KHALED ABOU EL FADL: Yes.
JEAN BETHKE ELSHTAIN: One of our questioners has put a question that goes roughly as follows, and he equates what he calls the emerging moral view to a view that is moving in the direction of abolition of the death penalty. And in light of that—if you want to accept that premise—in light of that, wonders whether it is better to attempt to reinterpret traditions, to make those traditions conform to this emergent view, or whether one can simply abandon a tradition if it doesn’t conform to that emerging view. So would you respond to that in light of the Islamic tradition?
KHALED ABOU EL FADL: I don’t think that the second, the option of abandonment is one that is acceptable either as a sort of sociological and empirical realistic choice, or one that is acceptable within a theological and moral choice. And the idea is this, is that one at the sort of empirical level, I think history consistently teaches us that religious doctrine, and religious beliefs, and religious traditions don’t simply evaporate, and don’t simply go away. They, in fact, assert themselves, and if ignored they assert themselves sometimes in a fanatic and quite ugly fashion. By perpetuating the impression that certain traditions are simply to be marginalized, the marginalized react by asserting their presence in sometimes ways that cause trauma for many.
And there is no alternative, in my view, from a sociological perspective other than to—the burden of persuasion, the burden of actually convincing individuals that such is a moral trajectory, and that such is a moral imperative to be voluntarily accepted by people. And when I look at various religious traditions, our expectation of 100 percent success is unrealistic. But we create main trends and main orientations, and if we do not expect sort of the notion of 100 percent success rate, which never exists in the field of moral persuasion anyway, then we see that on the sociological level that, in fact, moral persuasion in the long term is quite successful.
Now, the other aspect is, as the theological internal view, in other words, the one that is not empirically based, and not sociologically based, parts of it, parts of the paradigm that we work with is has God—if this is a faith based system, has God revealed God’s self, the manifestations of God, if one assumes that God manifests in the moral and in the beautiful, and in the good. If one assumes that, has God manifested God’s self, in a complete and thorough way in these traditions, in traditions in whatever historical epoch, or is God’s manifestation of morality contingent on human agency.
In other words, put differently, is it part of our dynamic with God, as human beings, that we continue to manifest God in a moral fashion more fully, in a progressive and evolving way. I subscribe to the second view of thought. God has not manifested completely and absolutely in any of the traditions, and God cannot be manifested perfectly and immutably, but it is the burden of human beings to continue exploring and investigating what does the moral mean, and what does the manifestation of the divine mean. And in light of that, one notices certain principles and premises set out in theological text that create not a moral fulfillment, but a moral trajectory.
And in this moral trajectory, at least in the case of the Islamic tradition, it is quite clear, if one can use this expression, that God is rather queasy about the termination of human life, even contrary—putting aside all the fanatic and truly unfortunate rhetoric of the bin Ladens of the world, and the discourse on jihad in the contemporary age and so on. There is a clear idea that human beings are part of, in fact the most honored, and the most important part of God’s manifestation of God’s self. And that this is a core element of God’s manifestation. And I think it’s quite appropriate that human beings engage in a moral process, a moral dynamic by which they ponder and think about the ways in which this manifestation of the divine can be preserved and honored age after age, in greater and greater ways, towards greater and greater fulfillment and to never abandon that search.
And so from that perspective, I think that it is appropriate to approach the traditions again, and to look at ways in which working through human agency, these traditions will not constitute a partial, or very partial, or minimally—in a minimal, even, way a fulfillment of the divine manifestation, and to say, I am going to now engage in this process of seeing ways that this most sanctified of creations can be preserved, and can be honored, and can be dignified.
JEAN BETHKE ELSHTAIN: Thank you. Let’s go to the next question, please.
QUESTION: Hi. My question is for any of the panelists who would like to address it. I’m interested in knowing what the impact of the history of abuse of capital punishment by various political and religious institutions throughout history has had on the thinking of the various religious traditions on this subject.
JEAN BETHKE ELSHTAIN: Professor Meilaender, would you like to begin with this one?
GILBERT MEILAENDER: No.
GILBERT MEILAENDER: In so far as you ask a historical question, I’m not actually sure that I’m capable of answering it because, as you asked, I was trying to think of examples of actual appeals to such history of abuse in the theological tradition, and I’m not sure how many there are. I mean, it is true that you can find, I think, if you look, for instance, in some of the appeals of that great Protestant thinker St. Augustine, when he appeals for mercy, part of the claim is precisely about the fallibility of human judges in a sense. That’s a much more general claim than the specific sort of illustration that you’re talking about with respect to abuse. But I think that that sense of the fallibility of judges has always been there, and that that, in a sense, opens up the possibility for the kind of move that you’re making.
Insofar as we think about it not as a particularly historical question, but just as a kind of a question aimed at present practice, I mean, you’d have to be a fool not to say that it calls for a certain kind of caution and humility when you think about such possibilities, and a certain kind of hesitation. Now, the presence of abuse doesn’t necessarily mean that a practice itself is always wrong, but it certainly calls for humility and caution.
JEAN BETHKE ELSHTAIN: Cardinal Dulles?
AVERY CARDINAL DULLES: Yes, it’s amazing to me. I mean, Christians were so aware of the execution of Jesus Christ at the very center of their religion, and considered that a gross miscarriage of justice, and yet it doesn’t seem to have made them inclined to deny the legitimacy of the death penalty itself down through the centuries. And only it was sort of fringe sects in the Middle Ages that were opposing the death penalty as such. Although, I think the church was always trying to restrain the exercise of the death penalty, and saying it shouldn’t be imposed for trivial theft of even a sheep or something in England, and always trying to say, no, no, let’s reserve it for very special cases. But I think, as I indicated in my remarks at the beginning, I think that Stalin and Hitler had something to do with the present trend against the death penalty, and in the thinking of a person like Pope John Paul II, I think his experiences as a Pole under the Nazi and Communist regimes where the death camps were so patently abused by the state authority, has really kind of shaken the presumption in favor of the state as far as he’s concerned, and made him very reluctant to say that the state can ever exercise this extreme power, although he doesn’t deny that in principle it exists. I think it can so easily and has so frequently been so grossly abused, that really has fed into a lot of the movement against the death penalty amongst Catholics in Europe since the middle of the 20th Century.
JEAN BETHKE ELSHTAIN: Thank you. David, I’m going to go to the next question, is that all right? Next please.
QUESTION: My question is for Cardinal Dulles, and you quite correctly stated the position of the Catholic Church today. But at the same time, it seems while you said that the abolitionist position was wrong in interpreting the Catholic Church’s position, it seems at the same time we’ve come to a prudential judgment that practically is identical with the abolitionist position, and the only thing that’s keeping us from moving forward is if you want the shibboleth of infallibility, and maybe those little Protestant concerns are coming into play. And at the same time, we have changed church teaching over the years on religious freedom, on slavery, and other issues. I wonder particularly in the current situation where keeping the death penalty on the books is used by the U.S. government and other governments as a fig leaf for continuing the very extensive practice of this culture of death practice that the Pope and the Catholic Church has denounced. I wonder if it’s not time to take that final step and move toward abolition in principle.
AVERY CARDINAL DULLES: I think we’re obliged to say that there are circumstances under which an individual has forfeited the right to life. There are certain things that are deserving of death, and it’s important for us to realize that. That’s a very important part of the teaching mission of the church, that not everybody all the time has the right to life. Now, whether in point of fact, you’re going to execute somebody because they don’t have a right to life is a prudential question which has to be variously decided according to circumstances. But I don’t think we can afford to let go of that important principle which runs through the whole Scripture, and the whole of tradition, I would say, that there are offenses deserving of death. And so, I would not say that Adolf Eichmann, or Timothy McVeigh, whoever you please, has not lost the right to life, that it’s an injustice against them to execute them. I don’t think it is. And I think it’s important to maintain that principle, and not to just fall into a nonjudgmental attitude that everybody, no matter who they are, always has a right to life.
So, I want to maintain the tradition. I do think it’s extremely important for the church to continue to abide by the testimony of Scripture and tradition, otherwise, we just have nothing to go on any longer. It just becomes a mantle of fluctuating public opinion, which does away with the whole purpose of the church, I think.
JEAN BETHKE ELSHTAIN: Next, please.
QUESTION: This is a question for Dr. Meilaender and/or Dr. Novak. And it’s really just to invite reflection on discussion of the death penalty as an instance of religion and public life in America. I’m struck by the converging consensus, not so much about abolition, but the kind of view that it should be permitted but not required ground in a kind of theological notion of political authority, and a pretty thick notion of retribution, at least among the three panelists, which stands in contrast to most discussions, which in our pluralist society default towards sociological arguments rather than the religious and moral content questions.
I guess my question is: given what some have called the eclipse of transcendence in liberal culture, what role should religious traditions play? Is it just sort of broadening the moral imagination in the kind of pluralist dialogue, and do you think September 11th and the rhetoric of justice and reemergence of a grammar that may resonate with some of the things that have already been mentioned this morning, has that changed things? So, basically, just religion and liberal society, death penalty as the instance of that discussion.
JEAN BETHKE ELSHTAIN: Okay. Who would like to begin, Gil, would you like to begin?
GILBERT MEILAENDER: Well, I don’t think that transcendence has necessarily been eclipsed, at least in this liberal society. And one could make a case that religious belief in some degree gave rise to liberal society. Partly, of course, out of the problems religious belief had created, but it’s not only out of orders of religion, in fact, there are also theological reasons why religious belief gave rise to this kind of society in which the state cannot finally make a total claim on any human being.
Now, what’s the purpose of this kind of language? We have to say a simple thing first, I mean, we were invited to speak as religious thinkers. It doesn’t mean there aren’t other things that can be said, or should be said, or whatever, but this is what they offered me an honorarium for doing.
JEAN BETHKE ELSHTAIN: And he’s going to get paid.
GILBERT MEILAENDER: Thank you. I look forward to that.
So, I mean, I don’t think we should deny that there are other angles and other perspectives from which to think about it. What can this language do? I think it can do several things. I mean, I don’t see why we can’t say that it can enrich and enlarge the conversation, but that’s partly it. But also there is, I said in my talk, that there is some kind of religious, something almost religious, a sensibility that inevitably arises when you think about something like the death penalty, and it may just turn out that to think about it in any context short of that is not to do justice to it. It seems to me that we ought to at least retain that possibility.
JEAN BETHKE ELSHTAIN: Rabbi Novak.
DAVID NOVAK: Yes. I think that there are two factors that, in Gil Meilaender’s presentation that I found myself resonating to, and I jotted down, and it’s directly appropriate to, Eric, your question. I resonated philosophically with his criticism of punishment as therapy, which actually goes back to Plato and the Republic. The notion that there should be kind of subjective judgment as soon as you are rehabilitated. I was disabused of that notion. I refer to personal history, in my first job as a rabbi, which was the Jewish Chaplain at St. Elizabeth’s Hospital, the federal mental hospital in Washington, D.C. I remember very well in the so-called criminal division, John Hinckley, the one who shot Reagan in 1981, if he’s still there. And I remember very well, how did one prove one was rehabilitated? To prove that one was rehabilitated, I discovered, was that the cleverest of those who were there, that is those who didn’t go to prison, very carefully went to the hospital library, read all of the articles of the psychiatrists and psychologists on their committee, and proceeded to show how rehabilitated they were by basically repeating their theories back to them, and they were vain enough to believe it. And I quickly got a good lesson in life.
So there’s something about the notion of retribution, which is the measure for measure. And the Jewish tradition talks about measure for measure, which many times is proportional. It’s not arithmetic equality in that sense. But at least this gives a standard of justice, that if you do X, Y will happen to you, and not because demonstrating “that you have been rehabilitated” as if punishment rehabilitates people. I really don’t think that’s the case. So that’s philosophically where I agree with Gilbert Meilaender.
And, therefore, I think that religious traditions that have produced a kind of hard core, necessary but not sufficient notions of natural law, that is that these are part of religious traditions that are rationally evident even before revelation, which are certainly not sufficient for the full human life, but nevertheless are standards by which the tradition itself judges itself, and corrects itself is important. And this is suggested by not only Scripture, but reflections upon Scripture, which are remarkably similar in Jewish and Christian traditions. That’s the philosophical agreement.
The other point that also is a case here that I think is less the case, but nonetheless can be entertained, is Gil Meilaender’s mention, or allusion really to the question that for religious people the death penalty in certain cases is a form of atonement. In the Jewish tradition, advocated really hypothetically because we don’t know if it’s a direct application, before execution the condemned was asked to confess his or her sin. Now, obviously, they would do that if they admitted that they did the crime. They wouldn’t if they didn’t. To confess their sin, and they were to confess their sin by a formulate which later became the formula for the death bed confession for all Jews. May my death be atonement for all my sins, and especially this one. The idea that the human punishment enables one to, therefore, be deprived of this world, but not lose the next world. Now, that was very much a part of when judges still pronounced, may God have mercy on your soul.
But I think that occasionally religious traditions can remind society that this was the case. And what comes to mind in the distinction I made in my paper between what are called public and private murder, that it was reported that the execution of the Nuremberg criminals, most of whom were defiant until the end. There was at least one exception. The exception was Hans Frank, who was the Nazi governor of Poland. And probably in this case, reverting in the good sense to his Catholic childhood, making a statement that even you were to kill ?? as reported, that even if you were to kill me a thousand times, your execution could not atone for the crimes I committed, is nevertheless a notion of atonement that returned to him that may very well influence God’s judgment upon him and others in the next world. It’s something that cannot be explicit, unlike measure for measure, which I think can be explicitly an influence and reminding society of its cultural origins, but it’s something which occasionally can be at least alluded to in at least to criminals about to be executed, that this provides you with an opportunity to make your peace with both man and God.
And I think that that is a factor that can only be by suggestion. But, nevertheless, I very much resonate to that in Gil Meilaender’s presentation.
JEAN BETHKE ELSHTAIN: Eric, I’m going to use the occasion of your question to do a variation on it for Professor Abou El Fadl.
Professor Abou El Fadl, are you still there?
KHALED ABOU EL FADL: I’m here.
JEAN BETHKE ELSHTAIN: Thank you so much for your patience. A question that was derived from a question that was put to our panelists, and that is, is there—and we have to be brief at this point because we’re starting to run out of time, but is there a concern that you have in light of the Islamic tradition, that the options you offered about the role of families of the victim’s family in either seeking recompense or exaction or forgiveness, that diminishes the role of public authority or perhaps creates the peril that public authority might become a tool in the hands of private vengeance in some cases, or some other alternative. Is that a concern within Islamic law?
KHALED ABOU EL FADL: Yes. I mean, it has been a concern, and that is actually why one of the main motivations of the second school of thought that argues that the state has independence, residual rights, regardless of what the family does. I think that to make it short, it seems to me that there is a place, an important place, where the interaction of private civil unit in the healing process, or what one hopes would be the healing process, after a murder, that there is much to be said about the moral empowerment of either forgiveness, or even the social embarrassment that comes along with saying, well, we want to be paid, and so on. In fact, any prosecutor that works with actual crimes will testify that they’re often dealing with the family of the victim of the crime, and the family wants that feeling of empowerment one way or another.
Now, of course, there is a very serious concern that if money is in the game at all, money is involved, that richer families would be able to pay their way out of things. And here I think that a reconciliation between the residual rights of the state and the moral view that capital punishment should not be an option unless it’s in cases where you can establish absolute moral certainty about the rightfulness of taking away a life, a form of reconciliation and systemization between these two views is necessary.
JEAN BETHKE ELSHTAIN: Thank you very much, Professor Abou El Fadl. I’m going to give you leave to ring off at this point.
KHALED ABOU EL FADL: Thank you very much.
JEAN BETHKE ELSHTAIN: Thank you so much for your participation.