Introduction and Thesis
This essay will examine the morality of the death penalty (capital punishment) through the lenses of the Eternal law, Divine law, Natural law, and Positive law.
The most efficacious place to begin an examination about the morality of the death penalty is not by arguing from the basis of how its application through Positive law is beneficial to the common good. What makes that an ineffective starting position is that it caters to the false principle that the material ends justify the means used to accomplish it. For example, it is illogical to argue for the death penalty being a ‘deterrent’, a ‘cost savings’ measure over indefinite sentencing, or means to speed up a ‘conversion process’ by giving a person their execution date, because these are all ends, and ends themselves cannot determine the morality of an act. For a clearer examination we have to look somewhere else; other than to Positive law (Human law) itself to judge it.
In other words, Positive law is not the standard by which to judge Positive law, because it is not its own source; it is not the prime sequitur of itself. Rather, the law, which Saint Thomas Aquinas calls, “an ordinance of reason for the common good, made by him who has care for the community, and promulgated,” must begin with God’s Eternal law, and that law flows the Divine law through which “man shares more perfectly in the Eternal law.”
More will be written below about Eternal law and Divine law, but let it suffice for now to state that whenever man apprehends a precept from Natural law that is in conflict with the Eternal law or Divine law, or through his human reason devises a Positive law that is in conflict with the Eternal, Divine, or Natural law, it must then, therefore, follow that man has erred in his reasoning. For, it can never be the case that Eternal law or Divine law is in error, because the law of the Lord is perfect and supersedes the reasoning of man.
Therefore, drawing from Scripture, Tradition, and History I will demonstrate that because that the death penalty has never been a part of the Divine law or Natural law, it must then be concluded that Positive law has been in error in this regard, just has it has with other laws that were contrary to the Divine and Natural.
Demonstrable Evidence of the Death Penalty in History is a Flawed Argument for the Death Penalty Being Included in Natural law
While there is clearly evidence, as demonstrated below, that there have been laws in favor of the death penalty in many ancient societies, it doesn’t necessarily follow that their origin springs from the Natural law. It could certainly be the case that human reason has been in error for millenniums in this regard, and without being directed by the law of God, man is open to erring in his law. It may also be the case that the Positive law was correct in judging an offense (e.g. murder, theft, or adultery) as being against the common good, but was in error about death being the penalty for that offense.
The Mesopotamian Code of Ur-Nammu (2100 – 2050 B.C.), which is the oldest known code of law surviving today, consists of thirty-two laws written in the Sumerian language. Three of the laws of Ur-Nammu results in the execution of the death penalty:
- If a man commits a murder, that man must be killed.
- If a man commits a robbery, he will be killed.
- If a man violates the right of another and deflowers the virgin wife of a young man, they shall kill that male.
Seventeen of the thirty-two laws of Ur-Nammu assign the offender to pay the victim a prescribed amount of silver as a remedy for the offense.
The Code of Hammurabi (cir. 1754 B.C.), named after the sixth Babylonian king, Hammurabi, consists of 282 laws; 29 of which results in the offender being put to death. These death penalty laws can be categorized as such:
- For Deception, False Entrapment and Ensnarement: 1, 2, 3, 227
- For Theft of Property (including slaves): 6, 7, 8, 9, (10), (11), 14, 15, 16, 19, 21, 22
- For Disobeying Chief during War: 26, 33, 34
- For Tavern Related Offenses: 109, 110
- For Crimes Against Freeborn Prisoners: 116
- For Adultery: 130, 153, 155, 157
- For a Man Causing a Freeborn Woman to Lose her Child: 210 “his daughter shall be put to death.”
- For Badly Construction a House that Falls and Kills the Owner or His Son: 229, (230)
Similar to the laws of Ur-Nammu, most of the other laws of Hammurabi assign the offender to pay the victim a prescribed amount of silver as a remedy for the offense.
Arguments aside in regards to dating and authorship, in the Mosaic Law, Exodus Chapters 21 and 22, and Leviticus Chapters 18 and 20 contains several commands for offenders to be put to death (stoning was the usual manner) for various reasons. While there is no archaeological evidence that Israel ever literally executed many people by stoning, these laws remain part of the sacred Scriptures.
As with the examples above and those not mentioned in detail, including ancient laws of China, the Hittite Code from the 14th Century B.C., the Draconian Code of Athens from the 7th Century B.C., the Roman Law of the Twelve tablets in the 5th Century, the death penalty has been a part of the Positive law since as far back as we can document it. Whether one was guilty of a capital offense, not only depended upon the moral object itself, but also on the class of the agent (e.g. was the agent a man or a woman, virgin or non-virgin, free or slave, rich or poor), and also depended on the circumstances and the ends. The ancient laws were a mix of ‘proportionalism’ and the morality of ‘principles’, but all seeking what they perceived to be the common good.
In these ancient laws is found what St. Thomas Aquinas believed was the first precept of Natural law, which is “good is to be done and pursued, and evil to be avoided.” Clearly, their reasoning leads them to believe that the death penalty was either a good to be pursued, and/or it was a remedy to avoid/dissuade further evil.
Yet, the evidence of the death penalty throughout the history of Positive laws does not necessarily lead to the conclusion that is part of the Natural law. It could very well be the case that erring reason, which is not derived from the Eternal law is the cause for Positive law seeking death as the remedy to criminal offenses.
In conclusion of this section; whether the imposition of the death penalty on criminals is in our nature to do is inconclusive through the history of laws alone. While there are clear examples of the death penalty seemingly always being part of our legal systems, there is no proof that our nature is what inclined us to make death the penalty for things we seemingly always knew to be behaviors and actions against the common good. We need to bring in the Divine law and interpretations of it throughout history to understand these findings in the history of Positive law.
Statements on the Primacy of Eternal law & Divine law, and the Death Penalty in the New Testament
Throughout the Gospels, but most particularly in Matthew’s Sermon on the Mount, Jesus Christ taught that the Divine law supersedes Positive law, and that we must reconcile our hearts and actions to the former.
As Moses went up the mountain to receive the law, Jesus went up the mountain to teach the law, which began with the issuance of nine beatitudes. Not even a quarter of the way into this sermon, Jesus, seemingly, had to depart from the sermon to defend His teaching. The phrase “Do not think that I have come . . .,” sounds defensive and is a clear deviation from His pattern of speech in the scripted teaching. Perhaps there was murmuring or He could sense the uneasiness in the crowd about the radical teaching coming from the Rabbi, so He found cause to make His first and most definitive statement about the law (the Torah); “Do not think that I have come to abolish the law or the prophets. I have come not to abolish, but to fulfill.”
While there is no consensus among Biblical scholars on precisely what Jesus meant by the word ‘law’ (i.e. explicitly the Torah or the Torah and the Pharisaic halaka), Jesus gives enough interpretive keys to understand what He meant by that word by the way of context in His sermon on the Mount, which Benedict XVI called “the New Torah”. This New Torah of Jesus contained within the sermon touches upon same covenantal relationship with God that the Old Torah did. This law of covenantal relationship is also the halaka, because it guides us to loving God with all of our heart, soul and mind, and love our neighbor as we love our self. Jesus being God, He both fulfills and decrees the New Torah in Himself, and elevates it (the Divine law) far above the issuances of Moses (613 precepts of Positive law) when He says, “You have heard that it was said . . . But I say to you.”
While the Sermon on the Mount does not mention the death penalty specifically, Jesus’ teachings against retaliation, loving enemies, and judging without hypocrisy, does address the elements that lead to sentenced criminals being executed.
John’s version of Jesus fulfilling and decreeing the New Torah in Himself comes when Jesus says, “I give you a new commandment: love one another. As I have loved you, so you also should love one another.” Here, Jesus more explicitly connects the Divine law to His very nature, which is love. While the law and nature of God is to love, the law and nature of the world is to hate.
The example that comes from the Apostles to us stipulates that whenever a Positive law is in conflict with the Divine law and Natural law, it must be rejected. Such was an occurrence in Jerusalem following Jesus’ death when the Sadducees rose up, “laid hands on them [the Apostles] and put them in custody . . .” The next day, after being questioned by the high-priestly class of the Sanhedrin, the Apostles were “ordered not to speak or teach at all in the name of Jesus,” to which Peter and John replied, “Whether it is right in the sight of God for us to obey you rather than God, you be the judges. It is impossible for us not to speak about what we have seen and heard.” In this exchange, the Apostles distinguished between the Eternal law and Positive law, committed to obeying the primacy of the former, and encouraged the Sanhedrin to use reason to reconcile the two laws.
Later in Acts, the Apostle Paul made a statement about the death penalty that could be taken out of context to imply that because Paul acknowledges the right of the state to execute him and all Scripture is inspired by God, that, therefore, the death penalty is part of Divine law. In a hearing before Porcius Festus, procurator of Judea, Paul says, in part, “If I have committed a crime or done anything deserving of death, I do not seek to escape the death penalty; but if there is no substance to the charges they are bringing against me, then no one has the right to hand me over to them. I appeal to Caesar.”
In essence here, Paul is saying nothing more about his current circumstance than Peter and John had to say about theirs in the aforementioned narrative. All three of these Apostles recognized the power the State has in discovering and executing their laws, but also expressed their hope that the State will use their power to judge them rightly. There is nothing explicit or implicit here that warrants any attribution of Saint Paul putting the Positive law of the death penalty in the body of Divine law. Moreover, the mere mention of a historical thing itself in sacred Scripture doesn’t necessarily make it a Divine truth. If that were the case, then Saint Paul merely mentioning that they have been beaten publicly would make public beatings part of the Divine law, but it is not.
Returning to Jesus, while His statement about His disciples seeing Him as a prisoner doesn’t necessarily relate to the death penalty, it does relate to the New Torah in regards to loving each other as He loved us. Moreover, being that most people who are executed by the State are imprisoned immediately preceding their execution, it is worthwhile to note here that the only thing Jesus Christ ever asked us to do to prisoners was to visit them, because they are Him. He never stated that ‘When I was in prison you killed me.’
Yet, Jesus’ most definitive statement against the Positive law of the death penalty is found in His passion. The State found Him guilty and executed Him. He allowed Himself to be subject to the laws of the State and did not remove Himself from their instruments of torture or death, yet, by His resurrection, He not only condemned the crucifix by redeeming it in His glory but also condemned the very law of capital punishment itself, which had no power over Him.
The resurrection of Christ Jesus is the clearest rebuking of the Positive law of the death penalty in all of sacred Scripture and is the clearest evidence that it has no place in the Divine law or Natural law. Not only is killing God contrary the Divine law and Natural law, but because God identifies Himself with us in creation and adoption, to kill any human is to kill God.
The evidence from Jesus Christ and His Apostles seem to clearly point in the direction that our history of making death the penalty for behaviors and actions that we seemingly always knew was wrong is in error. Yet, before concluding, we should examine the writings of those who were the immediate interpreters of Jesus and Apostles for more findings.
Unanimous Consensus Among the Pre-Nicene Council Fathers on the Death Penalty, but Changing Attitudes After the Death Penalty is No Longer Being Used Against Christians
A phrase that has been alluded to throughout the tradition of the Catholic Church and specifically applied by name at the Council of Trent (Fourth Session) and reiterated at the First Vatican Council (Dogmatic Decrees of the Vatican Council, chap. 2) is the ‘Unanimous Consensus of the Fathers’.
Whenever the Church Fathers have unanimously and morally taught on certain doctrines as being revealed by God and on interpretations of Scripture as being received by the universal Church, we can rightly apply the phrase ‘Unanimous (Lat. unus, one + animus, mind) Consensus (Lat. meaning agreement, accord, harmony)’. The Unanimous Consensus of the Church Fathers is the united testimony and a certain criterion of divine revelation. Yves Congar said that the “unanimous consensus of the Fathers or of the Ecclesia clearly indicates a “locus” of divine action.” This phrase doesn’t imply that the individual Fathers are personally infallible, but, rather, that together they are an authentic witness and a collective testimony to the Apostolic tradition, which a few discrepancies among them may not harm.
In the instant case, there is no Unanimous Consensus among the Church Fathers on the Death Penalty, which is one of the reasons why Joseph Cardinal Ratzinger (Pope Benedict XVI) as Prefect of the Congregation for the Doctrine of Faith stated in Worthiness to Receive Holy Communion: General Principles, that ‘capital punishment’ is an area where Catholic may express a diversity of opinion. And a diversity of opinion of certainly what is found among the Church Fathers, Doctors, and Magisterial Documents on this issue.
In this Supplication for the Christians (circa. A.D. 177), Athenagoras of Athens made a calm appeal to Emperor Marcus Aurelius and to his son, Emperor Commodus, to defend Christian beliefs against some accusations that were being made by pagans about them. In regards to why Christians condemn and detest all cruelty, despite the claim by pagans that Christians are murderers, Athenagoras raises the example of gladiator spectacles on the grounds that for Christians seeing “a man put to death is much the same as killing him.” He goes on from there to compare the death penalty executed in the gladiator games with abortion, saying, “How, then when we do not even look on, lest we should contract guilt and pollution, can we put people to death? And when we say that those women who use drugs to bring on abortion commit murder, and will have to give an account to God for the abortion, on what principle should we commit murder?” Clearly, for Athenagoras of Athens, the death penalty is a violation of the fifth commandment (“Thou shalt not kill”).
In A Testimony on the Soul (circa. A.D. 197-200) Tertullian mocked the use of the death penalty on the grounds that those who use it also are the same ones who believe the executed are, thereafter, reincarnated. “Forasmuch as this doctrine is vindicated even on the principle of judicial retribution, on the pretense that the souls of men obtain as their partners the kind of animals which are suited to their life and deserts . . . I must here also remark, that is souls undergo a transformation, they will actually not be able to accomplish and experience the destinies which they shall deserve . . .” It is very important thing to remember that pagan and non-Christian supporters of the death penalty have a very different understanding about final destinations than do Christians. If one merely believes that after death a person becomes a dog or a bird or a ghost, then killing a person is not as consequential, than if you believe that they are headed to their final judgment.
Above, in Section Four, I remarked that Jesus Christ’s New Torah clearly forbids His followers to act contrary to love, but that was not the case in the old Torah. Why is that? In Against Celsus (A.D. 248) Origin agrees that, “Christians could not slay their enemies, or condemn those who had broken the Law to be burned or stoned, as Moses commands . . .” and he then goes on to answer for the distinction between Christians and Jews, writing, “But in the case of the ancient Jews, who had a land and a form of government of their own, to take from them the right of making war upon their enemies, of fighting for their country, of putting to death or otherwise punishing adulterers, murderers, or others who were guilty of similar crimes, would be to subject them to sudden and utter destruction whenever the enemy fell upon them; for their very laws would in that case restrain them, and prevent them from resisting the enemy. And that same providence which of old gave the law, and has now given the Gospel of Jesus Christ, not wishing the Jewish state to continue longer, has destroyed their city and their temple: it has abolished the worship which was offered to God in that temple by the sacrifice of victims and other ceremonies which He had prescribed.”
In his encouraging letter To Cornelius in Exile, Concerning His Confession, Saint Cyprian of Carthage writes to his brother bishop of Rome, who has been condemned to martyrdom, “[Christians] cannot be conquered, but that they can die; and that by this very fact they are invincible, that they do not fear death; that they do not, in turn, assail their assailants, since it is not lawful for the innocent even to kill the guilty; but that they readily deliver up both their lives and their blood; that since such malice and cruelty rages in the world, they may the more quickly withdraw from the evil and cruel.” Thus, for Saint Cyprian, the death penalty is an instrument of the world that is used against Christians but not by them.
In his The Divine Institutes Lactantius echoes Athenagoras’s condemnation of death penalty being executed at the gladiator games. “For he who reckons it a pleasure, that a man, though justly condemned, should be slain in his sight, pollutes his conscience as much as if he should become a spectator and a sharer of a homicide which is secretly committed. And yet they call these sports in which human blood is shed . . . For when God forbids us to kill, He not only prohibits us from open violence, which is not even allowed by the public laws, but He warns us against the commission of those things which are esteemed lawful among men. Thus it will be neither lawful for a just man to engage in warfare, since his warfare is justice itself, nor to accuse anyone of a capital charge, because it makes no difference whether you put a man to death by word, or rather by the sword, since it is the act of putting to death itself which is prohibited. Therefore, with regard to this precept of God, there ought to be no exception at all; but that it is always unlawful to put to death a man, whom God willed to be a sacred animal.”
Post-Nicene Council to the Council of Trent
After the Edict of Milan (A.D. 313), which was an edict promulgated by Constantine and Licinius of toleration of all religions in the Roman empire; granting legal status to Christians, the Catholic Church began moving from being persecuted to being the most acceptable religious institution in the empire. Also, now that the death penalty was no longer being used against Christians they went from sharing a Unanimous Consensus against it to having a Unanimous Consensus in giving the State a cover or license to employ it.
Of these statements that give approval/cover/license by the Catholic Church to the State has to kill those whom they judge as being guilty of a capital offense, Saint Augustine, and (much later) The Catechism of the Council of Trent and Saint Thomas Aquinas are the most often cited:
St. Augustine believed that there were two exceptions in the Divine law that allowed for men to be put to death: (1) a general law, or (2) a special commission granted for a time to some individuals (e.g. soldiers), because they put to death “wicked men; such persons have by no means violated the commandment, You shall not kill.”
St. Thomas Aquinas also found it “praiseworthy and advantageous” for the state to execute people who are harming the whole community. “Therefore if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since “a little leaven corrupteth the whole lump” (1 Cor. 5:6).” Then in Summa contra Gentiles Aquinas found that not only does the State have the license to terminate the life of “evil ones”, but that criminal’s critical point of death provides an opportunity to afford the salvation that the State cannot provide, but should they not be converted “it is possible to make a quite probable judgment that they would never come away from evil.” This is false conclusion made by Aquinas, and impossible to affirm as being absolutely true.
Consider that there were two criminals being crucified with Jesus, but only one converted at the hour of his impending death. There is no way for us to know for certain whether the unconverted criminal could not have been moved by God’s grace later in his life when other types of opportunities for conversion may have presented themselves. It is an error to presume that God’s grace is more abundantly poured out, or that it is more efficacious on those who have an execution date to lead them to salvation than it is for those who are unaware of the day that the soul will depart from the body.
As an Assistant Chaplain working in a prison hospice, I had sat and prayed the Divine Mercy Chaplet at the bedside of many prisoners who were taking their last breaths, and from my vantage point, conversions to Christ Jesus near or right before one’s death was not often the case. This is just personal empirical evidence, but it lends to the point that there is no way to prove St. Thomas Aquinas’ argument that impending death may be a sacramental remedy for conversion.
For the Catechism of the Council of Trent, the State is outside the bounds of Jesus’ New Torah. “Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent.” Citing Psalm 101:8, the Catechism calls this means of execution by the State a “just use of this power” for the specific crime of murder and is not contrary to the Fifth Commandment, because it gives “security to life by repressing outrage and violence.”
The only sure way to determine whether the death penalty is consistent with the Eternal law and Divine law of God is through Jesus Christ’s teaching on the New Torah, because the Natural law, Positive law, and the most trusted interpreters of the Divine law have all proven to be contradictory.
Those who say that the Catholic Church has always allowed for the State to use the death penalty are in error. As has noted above, that is not completely accurate. There has been no Unanimous Consensus on this issue throughout the history of the Church. Moreover, because the Pre- and Post-Nicene Fathers seem to have been merely reacting to the persecution and favor shown to them by the State, respectively, they are untrustworthy witnesses on this issue.
In today’s Catholic Church, Saint Pope John Paul II’s statement in his encyclical, Evangelium Vitae, that “The dignity of human life must never be taken away, even in the case of someone who has done great evil. Modern society has the means of protecting itself, without definitively denying criminals the chance to reform,” seems to have opened up a floodgate of actions by Bishops in the United States and elsewhere to call for the State to end the death penalty. Yet, even in this new epoch of mercy, based upon the scattered history of the Church on this issue, there is no way for us to know whether this matriculation towards finding the common the good in protecting the life of the criminal is a permanent movement in Church teaching or not.
On the contrary, it is this very lack of any Unanimous Consensus in the nearly two-thousand-year tradition of the Catholic Church that provides us with the best proof that the Positive laws which allow for the execution of criminals are foreign to both the Divine law and the Natural law. A silence has been created by the interpreters of the Divine law because of the contradictory evidence presented by the Pre- and Post-Nicene Fathers, St. Thomas Aquinas, the Catechism of Trent, and modern magisterial teachings. They have left plenty of room to question which age of theologians and Bishops have partaken in right reason tell us for certain whether the death penalty is derived from the Eternal law.
In regards to Natural law, it too is silenced due to the long history of Positive laws in favor and against the death penalty. Human reason alone has lead many States to contradictory conclusions.
Therefore, the only place we have to turn to is the Eternal law and the Divine law, given to us through Jesus Christ in His New Torah for True Life and Sacrificial Love, and through His triumph over the death penalty, which stands as an eternal condemnation of the Positive law that attempted to kill Him.
Through this we know that any Positive law that pretends to give a license to the State to do the same to those who have been created in the image of God what was done to God, is contradictory to the New Torah (the Divine law, which springs forth from the Eternal law) and is the due result of errant human reason. Only God has the true authority to bring things to life and to put those same things to death. Anyone human who is attempting to do similarly is only falling in the same envious error as Eve of wanted to be like God.
 S.T., I, II, Q. 90, art. 4.
 S.T., I, II, Q. 91, art. 4.
 Cf. Ps. 19:7; 118:8.
 S.T., I, II, Q. 91, art. 4.
 () related to the previous law.
 S.T., I, II, Q. 91, art. 2.
 S.T., I, II, Q. 19, art. 5.
 Cf. Exo. 19:20.
 Cf. Mt. 5:1-12.
 Mt. 5:17.
 Viviano, Benedict T. “Matthew.” The New Jerome Biblical Commentary. Ed. Brown, Raymond E., Joseph Fitzmyer, and Roland Murphy. Englewood Cliffs, N.J.: Prentice-Hall, 1990. 641. Print.
 Ratzinger, Joseph. Jesus of Nazareth. New York. Double Day. 2007. 101. Print.
 Cf. Mt. 22:27
 Cf. Mt. 5:38-42.
 Cf. Mt. 5:43-48.
 Cf. Mt. 7:1-5.
 Jn. 13:34.
 1 Jn. 4:8.
 Cf. John 15:18; Mt. 10:22.
 Acts 4:2-3.
 Acts 4:18.
 Acts 4:19-20.
 Acts 25:11.
 Cf. Rom. 13:4.
 Cf. Rom. 12:19.
 Cf. Acts. 16:37.
 Cf. Mt. 25:31-46.
 Cf. Gn. 9:6.
 “Unanimous Consensus”. Maryknoll Catholic Dictionary. Wilkes-Barre, Penn. Dimension Books. 1965. 153. Print.
 Congar, Yves. Traditions and Tradition: An Historical and a Theological Essay. New York. Macmillian Company. 1966. 397-400. Print.
 “3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.”
 Chapter 33.
 Book VII, Chapter 26.
 Book VI (Of True Worship), Chapter XX.
 Another common source of a pro-Death Penalty quote from Fourth Century is The Apostolic Constitutions or Constitutions of the Holy Apostles (circa. 375 – 390): “Not as if all killing were wicked, but only that of the innocent. However, the killing that is just is reserved to the magistrates alone.” The author is unknown, perhaps the same author as the Pseudo-Ignatius. All of this document has been rejected in the West since the fifth century, but parts of it has been held in higher esteem among Catholics in the East. This quote from section two of the document demonstrates the furtherance of the idea that the Church can give license of expediency to the state to act contrary to the Gospel of Jesus Christ.
 Saint Augustine, City of God. Book 1, Chapter 21.
 S.T., II, II, Q. 64, art. 2.
 Book III, chapter 146.
 The Catechism of the Council of Trent.
 Paragraph 27.
 Cf. http://www.usccb.org/issues-and-action/human-life-and-dignity/death-penalty-capital-punishment/ (retrieval date: 11/21/2016).
 Cf. S.T. I, II, Q. 93, art. 3.