Choose life, not death

There is a growing consensus in the Catholic Church against use of the death penalty. But in the United States a top Catholic judge has voiced a totally opposite opinion. He added that US judges who thought capital punishment immoral should resign. Justice Scalia?s viewpoint is here criticised by a QC at the Scottish Bar.

25 January, Justice Antonin Scalia, one of the nine judges who make up the bench of the Supreme Court of the United States, addressed a conference held at the University of Chicago on ?Religion, Politics and the Death Penalty?. Himself a Catholic, he expressed his unequivocal dissent from the teaching of Pope John Paul II on the death penalty in his 1995 encyclical Evangelium Vitae. The Pope there put forward the view, under the general principle of ?respect for life?, that the death penalty may only be imposed to protect rather than avenge. The Pope concluded, however, that since the protection of the community can now be achieved in most cases by other means, the State can have no proper moral basis on which to justify the imposition of the death sentence.

Justice Scalia argued that the State did have such a moral right. First, he stated that the State has a scope of moral action that goes beyond what is permitted to the individual, and so the acceptance of the fact that an individual has no right to kill another does not close off the possibility that the State may have a right to put a man to death. Secondly, from a specifically Christian perspective, Justice Scalia noted that St. Paul advised the Romans (Rm 13:1-7) that the governing authorities of the State were invested with ?divine authority? and therefore anyone who resists the authorities ?resists what God has appointed?. Justice Scalia accordingly had no place in his system for the possibility of civil disobedience, that is to say the claim that an individual citizen might be justified in disobeying an unjust law. Finally, the judge noted that St Paul in his letter to the Romans explicitly conceded to the powers that be the right to punish wrongdoers ?by the sword?, and that St Augustine, St Thomas Aquinas and St Thomas More all allowed for the imposition of the death penalty by the State.

Justice Scalia went so far as to suggest that the contrary position owed more to Napoleon, Hegel and Freud rather than to the constant tradition of the Church and, perhaps, was symptomatic of a general loss of religious faith in Western European societies. He argued:

?The more Christian a country is, the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe and has least support in the church-going United States. I attribute that to the fact that for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal, a grave sin which causes one to lose his soul, but losing this physical life in exchange for the next is not?For the non-believer, on the other hand, to deprive a man of his life is to end his existence ? what a horrible act. And besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will, the ability of man to resist temptations to evil, is central to the Christian doctrine of salvation and damnation, heaven and hell. The post-Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.?

Justice Scalia warned that if the ?Church?s new, albeit non-binding position? on the immorality of the death penalty were imposed on the faithful, this would require American Catholics to withdraw from public life, because it would effectively disqualify them from running from political office, from sitting as judges, from working as criminal prosecutors, or from serving on juries. He said: ?The choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty. He has, after all, taken an oath to apply those laws, and has been given no power to supplant them with rules of his own.?

Analysis
Judge Scalia holds that the growing rejection of the morality of the death penalty arises from the sensibility of ?post-Christian Europe?. But it seems more accurate to say that it arises from a ?post-Nuremberg Europe?. By ?Nuremberg? I mean both the experience of the perversion of the form and substance of the law in the Nazi State ? most clearly exemplified in the Nuremberg laws codifying discrimination against the Jews ? and the post-war trials of those who had most responsibility for the perversion. The Nuremberg war trials sought to purge the evil that had been done in the name of ?law? and ?order?, in the same town in which Nazism?s laws were first drafted and promulgated: in a symbolic way, the trials aimed to restore justice to the law. Since then, the uses and abuses of the law and legal system which were revealed by Nazism have given rise to a complex process of reflection. It must never be forgotten that Pope John Paul II lived as a young man under Nazi rule in occupied Poland.

In the words of the Nuremberg war crimes tribunal, the Nazi legal system was one which nurtured ?a nation-wide government-organised system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law by the authority of the Ministry of Justice and through the instrumentality of the courts. The dagger of the assassin was concealed beneath the robe of the jurist?. The grotesque nature of the Nazi legal system lies in the fact that judges and lawyers considered the text of the laws passed by the governing authorities and attempted to apply those laws to the factual situations presented before them. The forms of rationality and objectivity were maintained, but the substance of the law was surrendered to sheer barbarism. A selection of some 16 jurists (public prosecutors, presiding judges and officials, lawyers and ministers in the Ministry of Justice) who had assisted in the administration of the legal system during the Nazi era were put on trial for their involvement in ?judicial murder and other atrocities which they committed by destroying law and justice in Germany and by utilising the empty forms of legal process for persecution, enslavement and extermination on a vast scale?.

The end result of the Nuremberg war crime trials was the articulation of a new legal order. It was no longer an excuse or a defence to a criminal prosecution to say that one was only following orders or applying the law as set down by the governing authorities of the State. Instead (civil) disobedience to the claims of the governing authorities was made into a duty. It is on the basis of this new legal order that war crimes trials have since been instituted into the genocides in, for example, the former Yugoslavia, of which the trial of Slobodan Milosevic is the most recent example.

But it was not simply in the realm of international law that Nuremberg had an impact. Responding to the horrors and excesses of the Nazi State and legal system, jurists came together to set out, both in international charters and national constitutions, the actual substance of the moral underpinnings to the domestic law of States. Thus, the United Nations proclaimed the Universal Declaration of Human Rights in 1948. International regional agreements were also entered into, notably the 1950 European Convention on Human Rights. With the exception of the United States, almost every other nation experienced significant constitutional change or development since the Second World War. This embracing and incorporation of fundamental rights standards within national legal systems post-Nuremberg may be seen as a memorial for or legal monument to the victims of Nazism.

One of the developing post-war insights into the requirements for the proper protection of fundamental rights is that the death penalty is unacceptable. For example, the Sixth Protocol to the European Convention, dating from 1983, provides that: ?The death penalty shall be abolished. No one shall be condemned to such penalty or executed.? Some (but relatively few) of those convicted in the Nuremberg trials were in fact executed, but this can be understood either as a form of delayed ?tyrannicide? or a final act of war rather than the act of a post-Nuremberg mature civil legal system. Tyrannicide is the classic ?hard case?, of course, in that it is an act carried out where there is absolutely no other option in relation to an authority whose rule subverts rather than upholds principles of law, morality and justice. It is the only way to restore right order and the rule of law. Whether to include the death penalty in the legal system or exclude it, however, is all about whether there are other options than meting out death, and it is on that basis that the Pope expresses his doubts as to whether it is ever licit.

Before the Second World War, the right of a State to impose the death penalty for serious wrongdoing went largely unquestioned. Mainstream Christian tradition did not denounce the State, or call it to account in this area. What was discovered with the experience of Nazism, however, is that the State can itself indulge in and encourage a blood frenzy of killing, while still wearing the mantle of legality. The revulsion following on the discovery of the Nazi death camps and concentration camps led, it is suggested, to a re-evaluation of the previously unquestioned rights of the lawful authorities over life and death. The Nazi legal system did not protect the innocent from death. Instead it conspired in their extermination. New legal limits were therefore set against the State.

Conclusion
Justice Scalia was right, at least, to point out that for individuals to be able to participate properly and conscientiously within the legal system (whether as a judge, lawyer or juror), there has to be a congruence between what their legal duties are, and what they see to be their moral duties. But his assertion that those who oppose the death penalty as immoral can therefore no longer participate as officials within the legal system is more dubious. This claim might be justified only if Justice Scalia was correct in his legal judgment that United States law obliged judges to implement the death penalty.

Laws in the United States, however enacted, have to be in accordance with the requirements of the US Constitution and its Bill of Rights. Constitutional Amendment VIII of 1791 provides that ?excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted?. Justice Scalia says it is illicit for subsequent generations to read into this a prohibition on the use of the death penalty because none was originally intended or envisaged by those who drafted it. The problem with such a ?strict constructionist? approach in relation to a text such as the US Constitution which is hedged against ready amendment, is that it means that the participants within the legal system are always constrained to act within a framework of eighteenth-century values. It therefore leaves the legal system unable to respond to or reflect changing moral insights. On Justice Scalia?s analysis, the US legal system simply has to remain in a ?pre-Nuremberg? state, sovereign in its isolation, with the State authorities untrammelled as regards their powers over life and death.

Contrary to Justice Scalia?s analysis, those working within the US legal system who accept recent papal teaching that use of the death penalty can rarely, if ever, be morally justified, do have a choice other than resignation from their posts. Such jurists may, instead, reject Scalia?s strict constructionism and choose to interpret the US Constitution as a ?living instrument?. In accordance with Evangelium Vitae, the moral principle of respect for life, combined with consideration of the existing constitutional prohibition against the infliction of cruel and unusual punishment, may lead lawyers to a proper legal judgment that the infliction of the death penalty is not only immoral, but is also unconstitutional and so unlawful.

The Pope?s encyclical, then, does not require the mass resignation of Catholics from public legal life. It just requires them to inform their interpretation of the US Constitution with the legal and moral insights gained after Nuremberg, namely that the law must always show absolute respect for the life of every individual, no matter of what race or religion or, indeed, what criminal act has been committed.