Aquinas Against the Death Penalty

The most crushing objection I’ve ever seen against the use of the death penalty is given by St. Thomas Aquinas as the first objection in ST II-II Q64 a2.  Let’s marvel at the objection for a bit and then look at how Aquinas responds.

In the Summa Theologiae, very often the first objection of an article is the conclusion of a previous article.  You might think of these as consistency objections, or an introduction to further refining a point.  “But wait a minute, you just said…” in the most annoying student voice you can muster.

On the other hand there are many objections which are just very intuitively powerful or insightful.  Reading the really great objections, being rocked on your heels, finally seeing the problem, really seeing it for the first time–these are perhaps the greatest the pleasures of reading St. Thomas.

The first objection against the use of death as a penalty is one of these, but with a bit of a twist: it’s a quotation from Sacred Scripture.  Why is that weird?  Well, very often I find his Scriptural objections fairly week or formulaic, or at least a bit of an interpretive strain to see how it really works as an objection.  There are exceptions of course, but I usually steer my students away from these so they can focus more on the main argument.

Well this is definitely one of the exceptions.  I’m not sure Aquinas ever gives a Scriptural citation with as much power as this one.  For those who know the reference, you probably don’t even need to see the text or have it explained to realize the problem for someone inclined to argue in support of the death penalty.  It is the famous parable of the wheat and the tares from the thirteenth chapter of St. Matthew’s Gospel.

The text, si placeat:

It seems that it is not licit to slay humans as sinners.  For the Lord (Matthew 13) in a parable prohibited rooting out the tares, who are the wicked sons as is said in the same place.  But everything which is prohibited by God is a sin.  Therefore to slay a sinner is a sin.

Videtur quod non sit licitum occidere homines peccatores. Dominus enim, Matth. XIII, in parabola, prohibuit extirpare zizania, qui sunt filii nequam, ut ibidem dicitur. Sed omne quod est prohibitum a Deo est peccatum. Ergo occidere peccatorem est peccatum.

Let’s summarize the parable, which you can read here (Matthew 13:24-30).  It’s one of three seed/sower parables all given in sequence, the first of which being the immensely famous sower scattering his seed on rocky ground, the road, etc.  You know, the parable Jesus goes out of his way to explain to the disciples.  Anyway, in St. Matthew’s Gospel Jesus continues with more seed/sower parables about the nature of the kingdom of heaven.

In this one, the second of the three, a man sows wheat in his fields.  While he sleeps, an enemy comes and sows zizania–cockle, tares, weeds–into the field alongside the good seed.  Once everything begins to grow and the servants realize what has happened, they ask the master if they should go out and root out–extirpate!–the tares.  The master forbids them, lest the wheat be uprooted in the process.  Rather, they will wait for the final harvest at the end of the season, gather everything, and then separate the wheat from the tares.  Wheat goes into the barn, tares into the fire.

Jesus does not immediately Himself explain this parable but it’s about as subtle as a baseball bat to the forehead.  Obviously there’s a strong similarity to the parable later in the gospel about the sheep and the goats, now recast as wheat and tares.  In this life they will live alongside each other in confusion, but in the final judgment they will be separated into punishment and reward.  Parabolically the servants are asking about punishing the wicked now, while they live on earth, and Jesus explicitly forbids it lest the just be harmed as well.

Uh…good luck arguing for the liceity of the death penalty; I’ll go make some popcorn.    Pretty tough to argue when God comes down from heaven and addresses your question directly.  Man…good luck.

[It is a travesty of justice that there isn’t a good picture of Jules telling Vincent that God came down from heaven and stopped these %(*&$! bullets, and I’m not making one]

But take care: Aquinas uses this as an objection.  That means he argues that the death penalty can be licit, which means he has an answer to this specific objection.  This is like watching Neo fight Morpheus except, uh, St. Thomas can’t beat God so I guess that simile got away from me.

The first lesson to draw here, I think, is a broad one that falls before any consideration of the further argument.  Whatever you want to say about capital punishment, you have to start here, with this parable, the way St. Thomas does.  Any sophisticated defense you’ve got cooked up for why sovereigns wield the sword and hold the power of supreme punishment is pure inanity unless it answers to the verbissima Christi here in this divinely inspired text.  It’s no secret that Catholics have been battling over this question in recent years; it’s downright shocking that none of the public battle seems to involve this parable and its possible interpretations.

And make no mistake, there are definitely some things to ponder in this parable.  Theologians are constantly giving novel interpretations of Sacred Scipture to convince us that it doesn’t mean what it seems to mean but in fact validates all our ideals and previously held convictions.  Normally I wave off these garbage takes, but here there’s definitely work to be done.

Is this parable really concerned with the political arrangements of life here on earth, or is it about our eschatological confrontation with God the Truth?  Aren’t the servants angels?  Or apostles, and therefore this is about God forbidding the Church to punish here on earth?  In the other two parables the seed is the Gospel, not persons.  I’ve already got a line of theologians wrapping around the building trying to argue that the burning of the tares doesn’t actually mean eternal torment in hell; what, now it’s a bridge too far if I suggest the parable isn’t directly addressing punishment on earth as well?

Less confrontationally, it’s clear that the just and the wicked aren’t just two teams, two sets of people carrying around identification cards or wearing appropriately-colored hats.  We’re all wicked at some point, sometimes quite a bit and for quite a long time.  The parable elides the issue of repentance and the vicissitudes of life precisely because its point of emphasis is in the final reckoning of things.  In that sense it is the exact opposite of the parable of the sheep and the goats, which vividly depicts the final judgment precisely because its point of emphasis is the presence of Christ in the other and the concrete response we all must make now while living on earth.

I’m not trying to settle the correct interpretation of the parable nor do I wish to sketch a variety of options for how to read it here.  It’s enough for my purposes to gesture vaguely and insist that all parties spend a lot more time worrying about it and meditating on it.  There’s an enormous amount of good fruit to be had doing so.

But I can afford not to care too much about all that here because Aquinas immediately and happily takes on the simple, plain-sense interpretation that the parable forbids the killing of the wicked here on earth.

The way Aquinas incorporates this into his argument is fascinating in part because it corresponds so nicely with contemporary concerns about the death penalty, concerns both secular and Catholic.  He opens up some space for argument by exploiting the fact that the landowner gives a reason for his command.  Aquinas takes this reason–lest the just be uprooted–as some kind of limiter or qualifier on the command.

Here’s the text of his response:

The Lord commands abstaining from the uprooting of the tares in order that the wheat be spared (that is, the good).  Which same may happen when the evil are not able to be slain without at the same time the good also being slain, whether because they lie hidden among the good or because they  have many followers, so that they cannot be slain without danger to the good; as Augustine says, contra Parmenianum.  Whence the Lord teaches rather that the evil be allowed to live and vengeance be reserved until the final judgment, than that the good be slain at the same time.  But when from the cutting off of the evil no danger looms for the good, but rather safety and health, then the evil licitly can be slain.

Dominus abstinendum mandavit ab eradicatione zizaniorum ut tritico parceretur, idest bonis. Quod quidem fit quando non possunt occidi mali quin simul occidantur et boni, vel quia latent inter bonos; vel quia habent multos sequaces, ita quod sine bonorum periculo interfici non possunt; ut Augustinus dicit, contra Parmen. Unde dominus docet magis esse sinendum malos vivere, et ultionem reservandum usque ad extremum iudicium, quam quod boni simul occidantur. Quando vero ex occisione malorum non imminet periculum bonis, sed magis tutela et salus, tunc licite possunt mali occidi.

Yes, humans can deserve death and yes, sovereigns have powers that private citizens do not and yes, when it is necessary for the health of the common good the wicked can be put to death.  But if in the process the sovereign slays also the just, then the common good is not served and the penalty of death is unlawfully wielded.  It’s interesting that Aquinas argues further than we would today.  He is concerned not only with something like an Innocence Project, but also with the kinds of scenarios that we typically don’t face in our modern society: the revenge of the evil-doer’s followers.

Consider one of my favorite movies, the highly-fictionalized tale of Wyatt Earp, Tombstone.  If the Arizona governor executes Curly Bill for his many savage crimes–and there is no doubt that he is guilty of those crimes and deserves death for them–will justice really be done?  What happens when Ringo rallies the remaining Cowboys, all one hundred of them, and they go on a killing spree in revenge for the death of their former leader?  How is the health and safety of the common good secured by the death of Curly Bill?  Aquinas is very clear; it is not thereby secured and so killing Curly Bill would be illicit.

So two things are very necessary for the use of the death penalty in this line of argument: the innocent must be kept safe from miscarriages of justice, and they must be kept safe from the unjust retribution of criminals.  By the former, the penalty of death can only be inflicted when there is certainty about the guilt of the accused and no possibility, outside of bizarre Cartesian doubt experiments, of killing “the wrong guy.”  I think of a modern example like the D.C. sniper from 2001, or a counter-factual case where the Las Vegas shooter of 2017 was captured before killing himself.  The latter case, the retribution of followers, seems a distant concern for 21st-century Americans…but it is a serious reminder that not every land “enjoys” the “benefits” of maximum security prisons and “fool-proof” legal systems.  Don’t get me started on my prison reform hobby horse, that’s another post entirely.

However, Aquinas does something interesting in the course of his response that ends up mattering quite a bit.  He begins his response with the concern that the just be slain along with the wicked, but at the end he restates the concern much more broadly in terms of danger to the just.  Is periculum merely meant to restate occisio, or does it embrace other kinds of harm?  It’s not immediately clear from the text.  The plain-sense reading is a very broad argument indeed, and one which bears directly on all the intra-Catholic squabbling over capital punishment in recent decades.

Here, numbered so it looks all fancy and analytic:

  1. If the wicked can be slain without harm to the just, then the death penalty can be licitly employed.
  2. The wicked can be slain without harm to the just.
  3. The death penalty can be licitly employed.

What St. John Paul II began to teach in the 20th century is that the minor premise is quite problematic.  This is his famous theme, running throughout many of the teachings of his pontificate, of the Culture of Life and the Culture of Death.  While expressly preserving Catholic teaching on more basic principles about deserving death and the legitimate powers of sovereigns, His Holiness began to insist that, in a modern society in which life is held cheap and death glorified, the use of the death penalty can and often does in fact harm the just–all the just, whether collectively or individually.  He in effect began to teach that very often Premise 2 is false, and so sovereigns should be very reluctant to use the death penalty.  Still, he acknowledged (as did his successor, Pope Benedict XVI) that Catholics of good will could disagree about just how often Premise 2 is false and just how reluctant sovereigns should be in the use of the supreme penalty.

That brings us to the teaching of Pope Francis on the same subject.  Quite famously, at least within Catholic circles, Pope Francis altered the text of the Catechism of the Catholic Church on this topic while at the same time insisting that he is not departing from the teaching of the previous two popes.  The churn over how to read this alteration continues even now, though the frenzy has abated quite a bit.  Despite the fact that His Holiness is very often an unclear teacher, teacher he remains.  Taking him at his word that he intends no departure from the tradition on this point, I think we can summarize his contribution to this discussion as follows:

  1. In the present circumstances of a modern world lost in a culture of death, the death penalty always harms the just and renders every use the death penalty illict.
  2. For this reason, all Catholics are bound to oppose its use.

Because of the confusion of our modern world and, sadly, the often confusing and ambiguous teaching style of His Holiness, this teaching has not been well-received (and I don’t just mean by his critics or detractors).  I think his teaching on this really is as simple as a slightly stronger claim about Premise 2 than either of his predecessors, simply couched badly and undermined by some problematic claims about prisons and legal processes.  But that he can so bind the conscience of Catholic faithful in matters of faith and morals is beyond dispute, and that extends to filial piety in giving his teachings the most charitable readings possible.

To close I want to emphasize: this argument is lifted directly from St. Thomas Aquinas.  The Angelic Doctor’s version of the argument does not ever state that the wicked can be slain without harm to the just.  He simply argues that when it can be done, it is licit.  In my post on Just War I suggested that we probably could not reasonably argue that Aquinas is a crypto-pacifist; he does seem to embrace that some wars really are just.  But I think it is very reasonable–not necessarily correct, just reasonable–to argue that he really is a crypto-abolitionist when it comes to the death penalty.  Everything necessary for a Catholic to oppose the death penalty while remaining faithful to the tradition is present in ST II-II Q64 a2.  You simply need to be able to articulate how the application of the death penalty, though not malum in se, harms the just.  Modern popes show the way to do so.

Let’s pursue this as a flight of fancy for a bit.  Would it be so strange to suppose that Aquinas really opposed the use of the death penalty and remained a bit coy about it?  He abandoned a life of wealth and privilege to join the Order of Preachers, a religious order dedicated to the evangelical counsels.  That order, much like its twin Order of Friars Minor, was founded as an orthodox channeling of the religious impulses of the 12th century.  It’s completely crazy to think that they had a bit of Waldensian in them?  I don’t mean a spirit of underground dissent, I mean something like a reconstructed Waldensianism, orthodox and docile to the teaching authority of the Church who had recently condemned the Waldensians.  So he’s not going to take the Waldensian position–it’s wrong and he knows it and he’s not stupid enough to run afoul of Church teaching on this point–but he’s going to load up his argument here so that with the slightest bit of cleverness you can end up in the same conclusion without making any Inquisition-worthy mistakes along the way.

I’m not going to lie, I like this flight of fancy quite a bit.  I don’t think I can prove any of it and I don’t think it actually matters much one way or another.  Sure, maybe St. Thomas really did support the use of death as a penalty in some cases and we’re just squeamish about it today because liberalism has completely subverted our sense of authority and the common good.  I don’t know; we can fight about that another day.

But I’m a contrarian by nature and any time I can overturn the board game so that St. Thomas Aquinas and Pope Francis end up on the same side against a bunch of critics of Pope Francis invoking St. Thomas Aquinas against him…

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