Religion & Law

Question on Scalia/Death Penalty

By Eduardo Penalver

Prof. Dave Douglas (William & Mary Law) sent me the following email:

I am preparing a talk on the views of various religious groups -- including the Catholic Church -- on the death penalty.  In an essay published in the May 2002 issue of First Things, Justice Antonin Scalia writes the following about the discussion of the death penalty in the papal encyclical, Evangelium Vitae, and the catechism:

So I take the encyclical and the latest, hot?off?the?presses version of the catechism (a supposed encapsulation of the ?deposit? of faith and the Church?s teaching regarding a moral order that does not change) to mean that retribution is not a valid purpose of capital punishment. Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this is not a moral position that the Church has always ­or indeed ever before ­maintained. There have been Christian opponents of the death penalty, just as there have been Christian pacifists, but neither of those positions has ever been that of the Church. The current predominance of opposition to the death penalty is the legacy of Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine. I mentioned earlier Thomas More, who has long been regarded in this country as the patron saint of lawyers, and who has recently been declared by the Vatican the patron saint of politicians (I am not sure that is a promotion). One of the charges leveled by that canonized saint?s detractors was that, as Lord Chancellor, he was too quick to impose the death penalty.

I am therefore happy to learn from the canonical experts I have consulted that the position set forth in Evangelium Vitae and in the latest version of the Catholic catechism does not purport to be binding teaching ­- that is, it need not be accepted by practicing Catholics, though they must give it thoughtful and respectful consideration. It would be remarkable to think otherwise -­ that a couple of paragraphs in an encyclical almost entirely devoted not to crime and punishment but to abortion and euthanasia was intended authoritatively to sweep aside (if one could) two thousand years of Christian teaching.

I am wondering what you think of the second paragraph of this excerpt from Scalia's essay, particularly his claim that the language in the catechism and in Evangelium Vitae about the death penalty do "not purport to be binding teaching -- that is, it need not be accepted by practicing Catholics, though they must give it thoughtful and respectful consideration."
Is that a correct reading of the catechism and Evangelium Vitae as they deal with the death penalty?  How does one distinguish between that which is "binding teaching" and that which is not?

I couldn't remember whether there had been any discussion on MOJ about this particular Scalia essay, but we have had substantial discussions about questions of hierarchical authority and the death penalty, and I thought Dave would benefit from the responses of people here. 

Full post as published by Mirror of Justice on January 23, 2008 (boomark / email).