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Copyright © 2007 Ave Maria Law Review

CAPITAL PUNISHMENT AND THE LAW


Kevin L. Flannery, S.J. †

I. INTRODUCTION

The realm of human affairs is a messy one, full of at least apparent


inconsistency and incoherence, and the recent teaching of the Catholic
Church on capital punishment—vitiated, as I intend to show, by
errors of historical fact and interpretation—is no exception. And yet,
as I also hope to show in this Article, despite all this, we can identify a
single consistent and coherent truth propounded not only in recent
years by the Church’s teaching Magisterium but also throughout the
centuries by the Aristotelian-Thomistic tradition.
What, and how, the Catholic Church teaches is important outside
her own walls since, not only is she the largest Christian body in the
world, numbering approximately one billion members,1 but her
teaching on the more controversial moral issues of our day affects
political and legal systems throughout the world. Indeed, the
Church’s teaching on these issues affects entities that have no—and
never have had—ties with the Catholic Church or even with
Christianity itself. In order to be convinced of this, one need only call
to mind recent opposition to the Church’s continuing role in the
United Nations—opposition that would not be worth mounting were
the Church lacking influence upon policy.2 Alternatively, one can ask
oneself what would happen to resistance in the United States to
embryo destruction were the Church to reverse her position on the

† Ordinary Professor of Ancient Philosophy at the Pontifical Gregorian University


(Rome); Mary Ann Remick Senior Visiting Fellow at the Notre Dame Center for Ethics and
Culture (University of Notre Dame).
1. Fines et Incolae, 1997 ANNUARIUM STATISTICUM ECCLESIAE (Liberia Editrice Vaticana)
17–18.
2. See Alison Mitchell, Bush Sides with Vatican on Its Status at the U.N., N.Y. TIMES, May
27, 2000, at A10; see also Catholics for a Free Choice, The Catholic Church and the United
Nations: Church or State?, CONSCIENCE, Winter 2000–2001, at 20, 20–23. After months of
negotiations, on July 1, 2004, the United Nations General Council approved a resolution
clarifying the role of the Vatican. G.A. Res. 58/314, U.N. Doc. A/RES/58/314 (July 16, 2004).

399
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400 AVE MARIA LAW REVIEW [Vol. 5:2

issue and say that embryo destruction is not immoral (something the
Church is extremely unlikely to do).3
The present Article begins with an analysis of recent Church
teaching, as found primarily (but not solely) in the Catechism of the
Catholic Church (“Catechism ”). The analysis of paragraph 2263 of the
Catechism (conducted in Part II(A)) casts doubt upon suggestions in
the Catechism itself that its teaching on capital punishment emerges
in a straightforward manner from St. Thomas Aquinas’s Summa
Theologica (“Summa ”).4 Part II(B) (devoted to Catechism paragraph
2264) argues that the Catechism’s exposition of the same teaching is
vitiated by philosophical problems and, in particular, that it fails to
integrate into its account the role of force in the analysis of human
action. Part II(C) examines Catechism paragraphs 2265 through 2267,
which underwent several changes before a final version (the editio
typica), and argues that few of these changes are substantive.
Part III offers a way of overcoming the problems discussed in Part
II. Part III(A) presents Aristotle’s two-tiered approach to the question,
“what is natural?” The work in which Aristotle sets out these ideas
most clearly is his treatise De Caelo [On the Heavens ],5 although he
explicitly applies them to the political realm. Aristotle’s ideas in De
Caelo are also intricately connected to his metaphysics. Part III(B)
argues that Aristotle’s understanding of the natural is part of the
philosophical and theological tradition of the Catholic Church. Part
III(C) applies the two-tiered approach of the natural to capital
punishment. This allows us to say that capital punishment is, in a
certain sense, natural and, in another sense, unnatural; this in turn
allows us to say that capital punishment is not, simply speaking,
against natural law but that nonetheless—as the Church has taught in
recent years—its ethical use depends on the conditions in place in the
political entity in which such use is contemplated.

3. See, e.g., Congregation for the Doctrine of the Faith, Donum Vitae [Instruction on
Respect for Human Life in Its Origin and on the Dignity of Procreation] (1987).
4. ST. THOMAS AQUINAS, SVMMAE THEOLOGIAE [SUMMA THEOLOGICA] (Collège
Dominicain d’Ottawa 1941) [hereinafter SUMMA THEOLOGICA] (author’s translations throughout
unless otherwise attributed).
5. ARISTOTLE, ON THE HEAVENS (J.L. Stocks trans.) [hereinafter ON THE HEAVENS], found
in 1 THE COMPLETE WORKS OF ARISTOTLE 447 (Jonathan Barnes ed., Princeton Univ. Press 1984).
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2007] CAPITAL PUNISHMENT AND THE LAW 401

II. THE CATECHISM OF THE CATHOLIC CHURCH

Let us begin, then, with the analysis of the Church’s recent


teaching. There are three major sources that need to be taken into
consideration: (1) the original version of the Catechism of the Catholic
Church, and, in particular, paragraphs 2263 through 2267 on
legitimate defense and the death penalty;6 (2) the 1995 encyclical letter
Evangelium Vitae, and, in particular, paragraph 27 and paragraphs 55
through 56 (again, on legitimate defense and the death penalty); 7 and
(3) the editio typica of the Catechism, which contains changes to
paragraphs 2265 through 2267.8

A. Paragraph 2263 of the Catechism of the Catholic Church

A serious problem presents itself in the very first paragraph (2263)


of the section of the Catechism on legitimate defense, which remains
unchanged in the editio typica. The paragraph (and the section)
begins with the remark: “The legitimate defense of persons and
societies is not an exception to the prohibition against the murder of
the innocent that constitutes intentional killing.” 9 The Catechism then
recites two sentences from St. Thomas Aquinas’s Summa Theologica :
(1) “The act of self-defense can have a double effect: the preservation
of one’s own life; and the killing of the aggressor;” and (2) “Nothing

6. CATECHISM OF THE CATHOLIC CHURCH ¶¶ 2263–67 (1994) [hereinafter CATECHISM OF


THE CATHOLIC CHURCH (1994)]. Editor’s Note: The provisional Catechism of the Catholic
Church was published in French in 1992 and in English two years later. The copyright page of
the 1994 English release contains the following statement: “This translation is subject to revision
according to the Latin typical edition (editio typica) when it is published.” Id. at copyright page
(emphasis added).
7. Pope John Paul II, Evangelium Vitae [Encyclical Letter on the Value and Inviolability of
Human Life] ¶¶ 27, 55–57 (1995) [hereinafter Evangelium Vitae].
8. CATECHISMUS CATHOLICAE ECCLESIAE ¶¶ 2265–67 (1997) [hereinafter CATECHISMUS
CATHOLICAE ECCLESIAE] (author’s translations throughout unless otherwise attributed; author’s
translations differ from those found in CATECHISM OF THE CATHOLIC CHURCH (2d. ed. 1997)
[hereinafter CATECHISM OF THE CATHOLIC CHURCH (1997)], which is the published English
translation of CATECHISMUS CATHOLICAE ECCLESIAE); see also Pope John Paul II, Homily at the
Papal Mass at the Trans World Dome ¶ 5 (Jan. 27, 1999), available at
http://www.nccbuscc.org/pope/mass.htm [hereinafter Pope John Paul II, Homily at Trans
World Dome] (describing the death penalty as “both cruel and unnecessary”).
9. CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶ 2263; CATECHISMUS
CATHOLICAE ECCLESIAE, supra note 8, ¶ 2263.
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402 AVE MARIA LAW REVIEW [Vol. 5:2

prevents one act from having two effects, of which one is within the
intention, the other beside the intention.”10
The problem is that Aquinas does not resolve the issue of public
self-defense by appeal to a double effect, one of which is intended, the
other not; that is his way, rather, of explaining the permissibility of
personal self-defense.11 The sed contra of the Aquinas article (which
comes before the sentences quoted by the Catechism) speaks of
defending one’s own life ( propriam vitam), as does a sentence coming
just after the quoted sentences.12 Thus, it is clear that the quotations
used in the Catechism are about personal self-defense.13 After the
section in the Summa from which the quotations are taken, there
occurs a break in the argument: “But,” Aquinas says, “as it is illicit to
take a man’s life, except for the public authority acting for the
common good . . . it is illicit for a man to intend killing a man in self-
defense, except for such as have public authority . . . .”14 Obviously,
the justification of public self-defense need not involve showing that
the death of the malefactor is beside the intention of the person or
persons bringing about that death. Aquinas says as clearly as one
could want that a public authority can legitimately intend to kill a
person who threatens the well-being of society.15
The same error of fact reappears in the encyclical Evangelium
Vitae. In the last sentence of paragraph 55, Pope John Paul II
discusses “legitimate defense,” as follows:

10. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2263 (quoting SUMMA THEOLOGICA,
supra note 4, Pt. II-II, Q. 64, Art. 7). Strangely, the published English translations of the Catechism
at paragraph 2263 do not contain the first bit of the second quotation. For example, the Latin
editio typica contains: “Nihil prohibet unius actus esse duos effectus, quorum alter solum sit in
intentione, alius vero sit praeter intentionem.” Id. Meanwhile, the 1997 English translation of
the editio typica contains: “The one is intended, the other is not.” CATECHISM OF THE CATHOLIC
CHURCH (1997), supra note 8, ¶ 2263. Not much hangs on this, although the translations give the
impression that the second quotation follows the first, whereas the opposite is the case.
Compare id., with SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7.
11. For a treatment of the principle of double effect, see infra app.
12. SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7.
13. See, e.g., JOHN FINNIS, AQUINAS: MORAL, POLITICAL, AND LEGAL THEORY 282–83 (1998);
Gerard V. Bradley, No Intentional Killing Whatsoever: The Case of Capital Punishment, in
NATURAL LAW AND MORAL INQUIRY 155, 155–73 (Robert P. George ed., 1998); Lawrence Dewan,
Thomas Aquinas, Gerard Bradley, and the Death Penalty: Some Observations, 82
GREGORIANUM 149, 151 (2001).
14. SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7 (emphasis added).
15. Id. (“[I]t is illicit for a man to intend killing a man in self-defense, except for such as
have public authority . . . .” (emphasis added)).
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2007] CAPITAL PUNISHMENT AND THE LAW 403

Unfortunately it happens that the need to render the aggressor


incapable of causing harm sometimes involves taking his life. In this
case, the fatal outcome is attributable to the aggressor whose action
brought it about, even though he may not be morally responsible
because of a lack of the use of reason.16

The Holy Father is obviously invoking the principle of double effect


in the passage, for his concern is to deny that the “fatal outcome” is
attributable to the self-defender’s intention; accordingly, he cites Part
II-II, Question 64, Article 7 of the Summa at this point.17 Paragraph 56
then begins with the remark, “It is in this context that the question of
capital punishment arises.”18 But this is false, at least historically, for
the question was never considered by the Church within that
context.19 We have already seen that Part II-II, Question 64, Article 7
of the Summa does not employ the principle of the twofold effect in
order to account for capital punishment.20 In addition, a second work
referred to at the end of paragraph 55 of Evangelium Vitae is
explicitly limited to private self-defense. The reference is to a dubium
in St. Alphonsus Liguori’s Theologia Moralis, bearing the title,
“Whether and in what way is it licit by private authority to kill a
malicious aggressor.”21

B. Paragraph 2264 of the Catechism of the Catholic Church

To return, though, to the Catechism, the next paragraph (2264),


which also remains unchanged in the editio typica, tells us much
about how the Catechism understands the role of law in the theory of

16. Evangelium Vitae, supra note 7, ¶ 55.


17. Id. (citing SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7).
18. Ioannes Paulus PP. II, Evangelium Vitae [Encyclical Letter on the Value and
Inviolability of Human Life ] ¶ 56 (author’s translation). The standard English translation
renders: “Hoc in rerum prospectu de poena capitali oritur quaestio . . . .” as: “This is the context
in which to place the problem of the death penalty.” Evangelium Vitae, supra note 7, ¶ 56.
Pope John Paul II is not saying, however, that we ought to put the issue there but that it does
arise in that context.
19. See infra text accompanying notes 29–38.
20. See supra text accompanying notes 11–15.
21. Evangelium Vitae, supra note 7, ¶ 55 (citing ST. ALPHONSUS MARIA DE LIGUORI, An et
quomodo liceat occidere privata auctoritate iniquum Aggressorem, in 1 THEOLOGIA MORALIS
dubium III, ¶ 380, at 631 (Leonardi Gaudé ed., 1905) (Italy) (emphasis added) (author’s
translation)).
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404 AVE MARIA LAW REVIEW [Vol. 5:2

natural law—and, in particular, about the role of law in determining


the legitimacy (or lack thereof) of capital punishment.
The paragraph begins with the idea that one has a natural right to
protect one’s own life: “Someone who defends his life is not guilty of
murder even if he is forced [cogatur ] to deal his aggressor a lethal
blow . . . .”22 This is quite in accord with what Aquinas says in Part II-
II, Question 64, Article 7 of the Summa Theologica, for, just after he
says that it is natural to defend one’s own life, he adds: “And yet,
though proceeding from a good intention, an act may be rendered
illicit, if it be out of proportion to the end.”23 The “proportion” of
which Aquinas speaks here has nothing to do with the weighing of
goods or values, as in contemporary “proportionalism,” but with the
presence of force.24 Suppose that there is a man coming at another
with an eight-inch blade. The attacker is still fifty feet away and the
other, a good pistol shot, has next to him both a small-caliber pistol,
with which he might disable his attacker, and a semi-automatic
assault weapon, with which he would certainly kill him. If he chooses
the latter, his action, even though it saves his life, is immoral because
the instrument employed is not proportionate to the only (relevant)
morally acceptable task before him: to protect his life. If he uses the
assault weapon, his intention—no matter what sort of story he might
tell himself—is clearly not just to protect his own life.25
But let us suppose that, as the attacker—whom the other man
knows is skilled with a knife—comes rushing toward him, he (the
attacked man) has next to him just the assault weapon. In this case,
the killing is forced upon the attacked man since his only option
(given the legitimate aim of defending himself) is to kill—or, at least,
to do something that is very likely to kill. In this case, the action is
proportionate to the task at hand, since what is a proportionate—or
appropriate—means depends upon (among other things) what is
available to the agent when he acts.26

22. CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶ 2264; CATECHISMUS
CATHOLICAE ECCLESIAE, supra note 8, ¶ 2264.
23. SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7.
24. On proportionalism, see infra app., at pp. 425–27.
25. See Kevin L. Flannery, Force and Compulsion in Aristotle’s Ethics, 22 PROC. OF THE
BOSTON AREA COLLOQUIUM IN ANCIENT PHIL. (John Cleary & Gary Gurtler eds., forthcoming
2007).
26. Id.
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2007] CAPITAL PUNISHMENT AND THE LAW 405

So, then, as paragraph 2264 of the Catechism suggests, legitimate


self-defense does require the presence of force.27 This is not to say,
however, that the agent has to be utterly forced. As the attacked man,
with only the assault weapon at his disposal, sees his attacker
approaching, he does have the choice to throw down even that; so his
choice to kill is not forced in an absolute sense. But it is forced in so
far as had he the option of not killing but only stopping the attacker,
he would choose the latter. The force is present in the fact that he
cannot decline to use the weapon and also protect himself. Force of
even this qualified variety causes something to be praeter
intentionem, or beside the intention.28
But—and here we return to the interpretive errors of the
Catechism —in the case of capital punishment, not even such force is
required. Aquinas says this quite explicitly. It is licit, he says, for
someone who has “public authority” to intend to kill.29 Aquinas has in
mind individuals who are in fact defending themselves, as he speaks of
those who “while intending to kill a man in self-defense, refer this to
the public good” (i.e., of the “soldier fighting against the foe” and the
“minister of the judge struggling with robbers”).30 But, it is clear that
they stand in a context morally distinct from that of the personal self-
defender and in the same context within which we must place the
public executioner, who is not, strictly speaking, defending himself but
rather the city that commissions him.31 The soldier, the minister of the
judge, and the executioner are clearly in the business of getting
attackers and malefactors dead. They wear “badges” (actually or

27. In interpreting Aquinas, the Catechism is a bit misleading when it says: “Someone who
defends his life is not guilty of murder even if [etiamsi ] he is forced to deal his aggressor a lethal
blow.” CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶ 2264; CATECHISMUS
CATHOLICAE ECCLESIAE, supra note 8, ¶ 2264. The agent is not guilty of murder only if he is
forced to deal the lethal blow. But this is cleared up in the next sentence, which is a quotation
from the Summa Theologica: “If a man in self-defense uses more than necessary violence, it will
be unlawful: whereas if he repels force with moderation, his defense will be lawful.”
CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶ 2264 (quoting SUMMA
THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7); CATECHISMUS CATHOLICAE ECCLESIAE, supra
note 8, ¶ 2264 (quoting SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7).
28. See Flannery, supra note 25.
29. SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7.
30. Id. The list of characters originally appeared in ST. AUGUSTINE, ON FREE CHOICE OF THE
WILL, Bk. I, Ch. 4, ¶ 25 (Anna S. Benjamin & L.H. Hackstaff trans., Bobbs-Merrill Co. 1964)
[hereinafter ON FREE CHOICE OF THE WILL].
31. See, e.g., SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 2; ST. THOMAS
AQUINAS, SUMMA CONTRA GENTILES, Bk. 3:II, Ch. 146 (Vernon J. Bourke trans., Univ. of Notre
Dame Press 1975).
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406 AVE MARIA LAW REVIEW [Vol. 5:2

figuratively) that say they can do such a thing. These are what allow
them to “refer” the deaths they bring about “to the public good.”32
Referring an act to the common good clearly does not entail not
intending the deaths.33
The personal self-defender needs to be forced into performing the
lethal action; the soldier, the minister of the judge, and the
executioner do not. Since the latter three figures do not necessarily
act on the spur of the moment and since, when not so acting, they
have various means at their disposal, force (in the sense we have been
discussing) cannot be the morally decisive factor. In other words,
given their shared context as officers of the law, the principle of
double effect as set out by Aquinas cannot apply to them.
But at this point an important question confronts us: How do we
know that these two types of action—personal and public self-
defense—are to be treated differently? Aquinas is quite clear about
this as well: We know this because the law says so. It is worthy of
note that in the paragraph of the Catechism we are examining (2264),
immediately after the quotation of Aquinas’s remark that someone
using proportionate means in self-defense does so licitly, there is an
ellipsis—in effect, the elimination of Aquinas’s reason why moderate
self-defense is permissible.34 The omitted words are: “[B]ecause [nam ]
according to the laws, ‘it is licit to repel force by force, provided one

32. “But as it is illicit to take a man’s life, except for the public authority acting for the
common good, as was said above,” SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 3, “it
is not licit for a man to intend killing a man in self-defense, except for such as have public
authority, who while intending to kill a man in self-defense, refer this to the public good, as in
the case of a soldier fighting against the foe, and in the minister of the judge struggling with
robbers, although even these sin if they be moved by private animosity.” Id. Pt. II-II, Q. 64,
Art. 7.
33. See KEVIN L. FLANNERY, ACTS AMID PRECEPTS: THE ARISTOTELIAN LOGICAL STRUCTURE
OF THOMAS AQUINAS’S MORAL THEORY 171–72, 191–92 (2001).
34. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2264 (“‘Si aliquis ad
defendendum propriam vitam utatur maiori violentia quam oporteat, erit illicitum. Si vero
moderate violentiam repellat, erit licita defensio [. . .] . Nec est necessarium ad salutem ut homo
actum moderatae tutelae praetermittat ad evitandum occisionem alterius: quia plus tenetur
homo vitae suae providere quam vitae alienae.’” (quoting SUMMA THEOLOGICA, supra note 4, Pt.
II-II, Q. 64, Art. 7)). “‘If a man, in self-defense, uses more than necessary violence, it will be
illicit: whereas if he repel force with moderation his defense will be licit. . . . Nor is it necessary
for salvation that a man forgo an act of moderate protection in order to avoid the killing of
another, for a man is more obliged to provide for his own life than for that of one who is
unconnected with him.’” Id.
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2007] CAPITAL PUNISHMENT AND THE LAW 407

does not exceed the limits of a blameless defense.’”35 Aquinas is, in


fact, quoting the Decretals of Pope Gregory IX. The public official’s
permission to kill intentionally is similarly established in law, for, as
we have seen, Aquinas speaks of the officer’s “public authority” and
of referring his action to the common good.36
One readily understands why someone—even an author of a
catechism—would want to de-emphasize such a reason for allowing
or disallowing intentional killing. In the first place, it smacks of
question-begging. Aquinas’s article itself is about whether it is “licit”
for someone to kill another in self-defense; indeed, the older
Dominican translation of the Summa entitles the article at issue:
“Whether It Is Lawful to Kill a Man in Self-defense.”37 It appears that
Aquinas is saying simply that self-defense is licit—or lawful—because
it is according to law. Add to this the post-World War II wariness of
law as arising out of political order (present still especially on the
European continent),38 and it is all too easy to see how certain
interpreters would be inclined to slide past Aquinas’s invocation of
law as the reason for the central distinction in Part II-II, Question 64,
Article 7 of the Summa.
In fact, however, invoking the authority of “the laws” is not
question-begging at all, since the structure of Aquinas’s reply is not
that of an argument seeking to show that y is true because it follows
from x, as a conclusion from a principle. In considering whether
personal self-defense is licit, Aquinas understands his task to be to
explain how it is different from public self-defense (the legitimate
killing effected by an officer of the law). Both personal and public
self-defense are sanctioned by law—Aquinas takes this for granted—
but they are sanctioned in different ways: the one killing is beside the

35. “[N]am secundum iura, vim vi repellere licet cum moderamine inculpatae tutelae.”
SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7 (quoting ST. POPE GREGORY IX,
DECRETALIUM GREGORII IX, Bk. 5, Tit. 12, Cap. 18, found in 2 CORPUS JURIS CANONICI 800–01
(Aemilius Friedberg ed., 1959) (1879)).
36. Id.
37. ST. THOMAS AQUINAS, SUMMA THEOLOGICA, Pt. II-II, Q. 64, Art. 7 (Fathers of the English
Dominican Province trans., Christian Classics 1981).
38. See PIERRE MANENT, A WORLD BEYOND POLITICS? A DEFENSE OF THE NATION-STATE 42
(Marc LePain trans., Princeton Univ. Press 2006). See generally RICHARD WOLIN, THE
SEDUCTION OF UNREASON: THE INTELLECTUAL ROMANCE WITH FASCISM FROM NIETZSCHE TO
POSTMODERNISM (2004) (arguing that contemporary reactions to fascism have often shared its
sentimentalized approach to moral and political issues).
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408 AVE MARIA LAW REVIEW [Vol. 5:2

agent’s intention, the other is not. There is no question-begging here


but straightforward description of a difference.39
Aquinas has none of the wariness of law characteristic of
contemporary European philosophy.40 This is not to say, of course,
that he was in any sense a legal positivist, and even less is it to say
that he did not realize that some laws could be unjust. He subscribed
to the Augustinian principle that an unjust law is not a law,41 and,
over the centuries, has taken his intellectual lumps for doing so.42 But
for all his readiness to admit improvements to any particular body of
law, he did look to law—that is to say, good law—as a means of
determining what is according to natural law.
Aquinas’s use of positive law as a means of determining the
content of the natural law is quite reasonable. Natural law is about
human nature—that is, what man does by nature.43 It would be very
un-Aristotelian to say that in determining what man does by nature
we cannot look to the way man actually organizes himself in cities

39. See FLANNERY, supra note 33, at 168–69, for a translation of the corpus of SUMMA
THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7, following the older Dominican translation in
rendering licitus and illicitus (and cognates) as “lawful” and “unlawful.” I also used the strong
presence of words like licitus and illicitus as evidence that the article is about what is lawful.
FLANNERY, supra note 33, at 186. I have been gently criticized for this move by a couple of
friends (Frs. Stephen Brock and Lawrence Dewan), who note that words like licitus, liceat, etc.,
have wider significations, referring to more than the strictly speaking lawful. Brock and Dewan
acknowledge, however, that SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7, does speak
much about what is lawful (in the strict sense). So, in this Article I avoid translating licitus (etc.)
as ‘lawful’ (etc.). This has the advantage of further discrediting the accusation of question-
begging. Granted (not conceded) that St. Thomas is arguing that private self-defense is lawful
because it is lawful, there is no question-begging if the word “lawful” has two meanings: the
first referring to what is licit in a general sense, the second to what is strictly speaking lawful.
40. See supra notes 35–36, 38 and accompanying text.
41. See SUMMA THEOLOGICA, supra note 4, Pt. I-II, Q. 95, Arts. 2, 4; Pt. I-II, Q. 96, Art. 4. For
St. Augustine’s position, see ON FREE CHOICE OF THE WILL, supra note 30, Bk. 1, Ch. 5.
42. H.L.A. Hart, much of whose academic career was spent opposing natural law
interpretations of positive law, often cites against natural lawyers the Augustinian tag (which he
knew as) “lex injusta non est lex [an unjust law is not a law].” See, e.g., H.L.A. HART, THE
CONCEPT OF LAW 8 (Peter Cane et al. eds., 2d ed. 1994) (“[T]he assertion that ‘an unjust law is
not law’ has the same ring of exaggeration and paradox, if not falsity, as ‘statutes are not laws’
or ‘constitutional law is not law.’” (footnote omitted)); see also FLANNERY, supra note 33, at 187–
88.
43. See, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 33–36, 102–03 (1980);
RALPH MCINERNEY, ETHICA THOMISTICA: THE MORAL PHILOSOPHY OF THOMAS AQUINAS 40
(1982); Robert P. George, Natural Law and Human Nature, in NATURAL LAW THEORY:
CONTEMPORARY ESSAYS 31, 31–39 (Robert P. George ed., 1992).
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2007] CAPITAL PUNISHMENT AND THE LAW 409

( poleis or political entities).44 And when we do look to this, we see


that public officials typically have the power to deprive certain
individuals of life, a power which, for good reason, is not afforded to
private citizens except in cases of personal self-defense. In short, most
human societies sanction the killing of malefactors by public
authorities but outlaw private executions; this supplies evidence—
perhaps not decisive evidence, but evidence all the same—that capital
punishment and personal self-defense are in accordance with natural
law.
Aquinas would never deny that, over the course of human
history, some very nasty practices have enjoyed wide political
acceptance. But he has a basic confidence that human reason,
employed in a disinterested way, is capable of discovering and
asserting that such practices are not good for human nature and,
therefore, not according to natural law.45 And, even were this basic
confidence in human reasonability to experience repeated
disappointment, it must still be asked to what other data can we turn
in order to know what is natural for man, other than to what man
does? If among those data we find irrational practices, since man is a
rational animal, these cannot correspond to natural law.

44. See, e.g., ARISTOTLE, NICOMACHEAN ETHICS, Bk. I, Ch. 1, 1094a1–18 (W.D. Ross trans.)
[hereinafter NICHOMACHEAN ETHICS], found in 2 THE COMPLETE WORKS OF ARISTOTLE, supra
note 5, at 1729. The first chapter of the Nichomachean Ethics speaks about the ends of human
action as embedded in arts, crafts, sciences, etc.: “Now, as there are many actions, arts, and
sciences, their ends also are many; the end of the medical art is health, that of shipbuilding a
vessel, that of strategy victory, that of economics wealth.” Id. 1094a6–9, found in 2 THE
COMPLETE WORKS OF ARISTOTLE, supra note 5, at 1729.
45. See, for example, SUMMA THEOLOGICA, supra note 4, Pt. I-II, Q. 21, Art. 1, where
Thomas argues that “every voluntary act is bad insofar as it falls short of the order of reason and
of eternal law, and every good act is in accordance with reason and eternal law.” The “reason”
spoken of here is human reason; eternal law is “the reason of divine wisdom.” Id. Pt. I-II, Q. 93,
Art. 1. As such, it cannot be known “according to what it is in itself” except by God and the
saints; nonetheless, all creatures have a certain knowledge even of this by way of a certain
illumination [irradiatio]. Id. Pt. I-II, Q. 93, Art. 2. See generally Lawrence Dewan, St. Thomas
and Moral Taxonomy, 15 ÉTUDES MARITAINIENNES [MARITAIN STUDIES] 134 (1999). Specifically,
speaking of the way the “circumstance” of a person’s being a criminal alters the moral character
of the act of killing, Dewan says:
That the man executed is a criminal adds [to the act of execution] a circumstance of
the sort which constitutes a new and good rational order. To shy from this is simply
to doubt reason’s ability to recognize good order for human life. Thus, people who
fail to recognize the difference of the two species [murder and execution] might be
suffering from a blindness as regards the primacy of the common good.
Dewan, supra 153. Dewan is expounding especially St. Thomas’s SUMMA THEOLOGICA, supra
note 4, Pt. I-II, Q. 18, Art. 10. Dewan, supra 153.
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410 AVE MARIA LAW REVIEW [Vol. 5:2

C. Paragraphs 2265 to 2267 of the Catechism of the Catholic Church

To return to the Catechism, some of the more extensive changes to


the 1994 version occur in paragraphs 2265 through 2267, although a
good number of these changes are just cosmetic (i.e., providing better
organization, more fluid expression, etc.). The following represents
the changes graphically:46

2265 Legitimate defense can be not only a right but a grave duty for
someone responsible for another's life, the common good of the
family or of the state. Preserving the common good requires
rendering the unjust aggressor unable to inflict harm. To this end,
those holding legitimate authority have the right to repel by armed
force aggressors against the civil community entrusted to their
charge.

2266 Preserving the common good of society requires rendering the


aggressor unable to inflict harm. For this reason the traditional
teaching of the Church has acknowledged as well-founded the right
and duty of 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. For
analogous reasons those holding authority have the right to repel by
armed force aggressors against the community in their charge.

The State’s effort to contain the spread of behaviors injurious to


human rights and the fundamental rules of civil coexistence
corresponds to the requirement of watching over the common good.
Legitimate public authority has the right and duty to inflict penalties
commensurate with the gravity of the crime. The primary effect of
punishment is to redress the disorder caused by the offense. The
primary scope of the penalty is to redress the disorder caused by the
offense. When his punishment is voluntarily accepted by the
offender, it takes on the value of expiation. Moreover, punishment
has the effect of preserving public order and the safety of persons.
Finally punishment has a medicinal value; as far as possible it should
contribute to the correction of the offender. Moreover, punishment,
in addition to preserving public order and the safety of persons, has

46. Text that remains unchanged in the editio typica appears in normal type; eliminated
text is crossed out and any emphasis is omitted; new words found only in the editio typica are in
italics; all footnotes are omitted. Compare CATECHISM OF THE CATHOLIC CHURCH (1994), supra
note 6, ¶¶ 2265–67, with CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶¶ 2265–67.
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2007] CAPITAL PUNISHMENT AND THE LAW 411

a medicinal scope: as far as possible it should contribute to the


correction of the offender.

2267 The traditional teaching of the Church does not exclude,


presupposing full ascertainment of the identity and responsibility of
the offender, recourse to the death penalty, when this is the only
practicable way to defend the lives of human beings effectively
against the aggressor.

If instead bloodless means are sufficient to defend human lives


against an aggressor and to protect public order and the safety of
persons, public authority should limit itself to such means, because
they better correspond to the concrete conditions of the common
good and are more in conformity to the dignity of the human person.

Today, in fact, given the means at the State’s disposal to


effectively repress crime by rendering inoffensive the one who has
committed it, without depriving him definitively of the possibility of
redeeming himself, cases of absolute necessity for suppression of the
offender “today. . . are very rare, if not practically non-existent.” 47

The changes are neither as complicated nor as significant as they


look. Paragraph 2265 is now devoted solely to the state’s right to
repel armed aggression.48 In the original paragraph 2266, the “primary
effect of punishment is to redress the disorder caused by the
offense;” 49 in the editio typica, “redress[ing] the disorder” is described
as a “primary scope [primum scopum],”50 thus bringing the redress of
disorder into the very nature of punishment rather than leaving it
external to punishment as an effect. Also, in the editio typica, the
following words have been eliminated from paragraph 2266: “For this
reason the traditional teaching of the Church has acknowledged as
well-founded the right and duty of 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

47. Compare CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶¶ 2265–67
(citations omitted), with CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶¶ 2265–67
(citations omitted). At the end of paragraph 2267, the editio typica also contains a new footnote
that cites Evangelium Vitae, supra note 7, ¶ 56.
48. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2265.
49. CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶ 2266.
50. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2266.
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412 AVE MARIA LAW REVIEW [Vol. 5:2

death penalty.”51 But this same idea is found now at the beginning of
paragraph 2267, along with the principle that the death penalty is
only appropriate “when this is the only practicable way to defend the
lives of human beings effectively against the aggressor.”52 But even
this latter idea was not absent from the original paragraph 2267: “If
bloodless means are sufficient to defend human lives against an
aggressor and to protect public order and the safety of persons, public
authority should limit itself to such means . . . .”53 Finally, paragraph
2267 adds from Evangelium Vitae the idea that the instances of
justified capital punishment are today “very rare, if not practically
non-existent.”54
There are a number of things to be said about paragraphs 2265
through 2267 even independent of any differences between the 1994
translation and the editio typica. The most important is the idea that
any penalty is meant to redress, in some manner, the disorder caused
by an offense. One notes that this idea is introduced after the
description of capital punishment as a means of self-defense, so we
are clearly to understand public self-defense as a means of redressing
disorder.55 Nor can this be a slip, for we find the same idea in
Evangelium Vitae, where Pope John Paul II (as we have seen) first
situates capital punishment within the context of self-defense and
then quotes the Catechism ’s words about redressing disorder.56
But this is not easy to make sense of, at least within the context of
the Catechism. The idea that punishment is basically the redressing
of a disorder (or “setting things to rights”) is an ancient one, with

51. Compare CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶ 2266, with
CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2266.
52. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2267.
53. CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶ 2267.
54. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2267 (quoting Evangelium
Vitae, supra note 7, ¶ 56).
55. CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶¶ 2263–66; CATECHISMUS
CATHOLICAE ECCLESIAE, supra note 8, ¶¶ 2263–66.
56. Pope John Paul II wrote as follows:
The problem must be viewed in the context of a system of penal justice ever more in
line with human dignity and thus, in the end, with God’s plan for man and society.
The primary purpose of the punishment which society inflicts is “to redress the
disorder caused by the offense.” Public authority must redress the violation of
personal and social rights by imposing on the offender an adequate punishment for
the crime, as a condition for the offender to regain the exercise of his or her freedom.
Evangelium Vitae, supra note 7, ¶ 56 (footnote call number omitted) (quoting CATECHISM OF THE
CATHOLIC CHURCH (1994), supra note 6, ¶ 2266).
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2007] CAPITAL PUNISHMENT AND THE LAW 413

origins traceable as far back as Aristotle’s remarks about commutative


justice in the fifth book of the Nicomachean Ethics.57 Aquinas takes
over this approach willingly.58 But redressing disorder is not
something that a judge is forced to do: it is not a defensive measure
but something the judge or other public official has a positive duty to
do. One could make the case that re-establishing order is a sort of
defense of the political entity in question: without the order of justice,
the city will eventually come apart. But the qualification “will eventually”
is important in this argument. If redressing disorder is essentially a
preventive measure, those who engage in it need not wait for a crisis
to present itself. It is the judge’s—or the legislator’s—job to maintain
as healthy a body politic as possible at all times. He has permanent
permission to enforce the peace, established by law. Furthermore, as
suggested above, the “badges” worn by the officers of the law who
execute the judge’s directives represent the fact that, unlike the self-
defender, they need not wait for dire straits before dealing with an
aggressor or other malefactor. We have already seen, of course, that
this distinction is slurred over in paragraphs 2263 through 2264 of the
Catechism.59
In the first paragraph of 2267, the editio typica states that
traditional Catholic teaching does not wholly exclude recourse to the
death penalty “when this is the only practicable way to defend lives
of human beings effectively against the aggressor.”60 This statement

57. Commutative justice for Aristotle is a sort of re-establishing equilibrium between two
parties. It can involve taking quantifiable goods from one party and giving them to the other,
but it can also concern goods—and a balance—which are less quantifiable. In his Nicomachean
Ethics, for instance, Aristotle discusses “acts proceeding from anger,” such as insults and
assaults; immediately after, he discusses the same sort of things done not in a passion but by
choice: “But if a man harms another by choice, he acts unjustly; and these are the acts of injustice
which imply that the doer is an unjust man, provided that the act violates proportion or
equality.” NICHOMACHEAN ETHICS, supra note 44, Bk. V, Ch. 8, 1135b26, 1136a1–3, found in
2 THE COMPLETE WORKS OF ARISTOTLE, supra note 44, at 1792–93. Here, re-establishing
“proportion or equality” clearly would involve punishment of some sort. See also PLATO, LAWS,
Bk. VI, Ch. 6, 757b, found in PLATO: COMPLETE WORKS 1318, 1433 (John M. Cooper ed., Trevor J.
Saunders trans., 1997).
58. See FINNIS, supra note 13, at 210–15 (discussion and references); see also ST. THOMAS
AQUINAS, SCRIPTUM SUPER SENTENTIIS MAJISTRI PETRI LOMBARDI [COMMENTARY ON THE
SENTENCES OF PETER LOMBARD], Tome II, Distinction 42, Q. 1, Art. 2 (Maria Fabianus Moos ed.,
Lethielleux 1947) [hereinafter SENTENCES].
59. See CATECHISM OF THE CATHOLIC CHURCH (1994), supra note 6, ¶¶ 2263–64;
CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶¶ 2263–64. For further discussion of this
distinction, see supra Part II(A)–(B).
60. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2267.
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414 AVE MARIA LAW REVIEW [Vol. 5:2

gives rise to a number of perplexities. It is true, of course, that


traditional Catholic teaching does not exclude recourse to the death
penalty;61 however, among traditional authors, it would be hard to
find expressed the restriction, “when this is the only practicable way
to defend lives of human beings effectively against the aggressor.”
So, perhaps we should presume that defending the lives of citizens
against the aggressor would include protecting them against the lack
of balance that would ensue if the aggressor—a mass murderer, for
example—was allowed to live. But this is clearly not what the
Catechism has in mind, for it goes on in the same paragraph number
to quote the remark from Evangelium Vitae that the cases in which it
is necessary to employ the death penalty are “very rare, if not
practically non-existent.”62
The most reasonable conclusion to draw from this discussion is
that, once again, the Catechism is simply wrong from an historical
point of view. Traditional Catholic teaching did not contain the
restriction enunciated by Pope John Paul II.63

61. See E. CHRISTIAN BRUGGER, CAPITAL PUNISHMENT AND ROMAN CATHOLIC MORAL
TRADITION 75–95 (2003).
62. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2267 (quoting Evangelium Vitae,
supra note 7, ¶ 56).
63. Since it is related to problems we have already seen, it is worth noting one final
problem that comes just after the section on legitimate defense. The beginning of paragraph
2268 (and the beginning of the section on “intentional homicide”) reads: “The fifth
commandment forbids direct and intentional killing as gravely sinful.” Id. ¶ 2268. This is open
to the objection that the Catechism itself accepts killing in war as possibly moral—and a lot of
the killing in war is clearly intentional (and, presumably, direct). See id. ¶ 2310. (On
expressions such as “direct killing,” see infra note 99 in the Appendix of this Article.) It would
be possible to defend the internal consistency of the Catechism by pointing out that it defines
even killing in war as killing in self-defense, which, according to St. Thomas Aquinas, is praeter
intentionem. Of course, this argument must look away from the fact that the type of self-
defense that St. Thomas has in mind in the relevant passage is personal self-defense. But there is
another solution, not entirely consistent with the one just formulated. At the beginning of
paragraph 2263 (and the beginning of the section on “legitimate defense”), the Catechism says:
“The legitimate defense of persons and societies is not an exception to the prohibition against
the murder of the innocent that constitutes intentional killing.” Id. ¶ 2263 (emphasis added).
So, it appears that when paragraph 2268 speaks of “direct and intentional killing” it could
actually mean killing of the innocent. Id. ¶ 2268; see also Evangelium Vitae, supra note 7, ¶ 57
(“Therefore, by the authority which Christ conferred upon Peter and his Successors, and in
communion with the bishops of the Catholic Church, I confirm that the direct and voluntary
killing of an innocent human being is always gravely immoral.”). But does this then entail that
intentional killing is possibly moral, as long as it is not killing of the innocent? If that is the case,
it was not necessary to assimilate killing in war and capital punishment to killing in self-defense.
On the other hand, notwithstanding the limiting phrase “of the innocent” in paragraph 2263, the
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2007] CAPITAL PUNISHMENT AND THE LAW 415

III. A SYNTHESIS OF TRADITIONAL AND


RECENT CATHOLIC TEACHING

A. The Natural and the Unnatural in Aristotelian Thought

Clearly there are difficulties in the teaching of the Catechism of


the Catholic Church and the encyclical letter Evangelium Vitae with
respect to capital punishment. These difficulties are caused by a
combination of factors. On the one hand, there is the understandable
desire to present the teaching of the Church on capital punishment as
traditional. The issue of capital punishment—or any killing, for that
matter—pertains to natural law; since natural law does not change,
the present teaching must in some way (or so the argument would go)
have a basis in natural law and traditional Catholic thought. It is for
this reason that the works of St. Thomas Aquinas, and in particular
Part II-II, Question 64, Article 7 of his Summa Theologica, are
repeatedly cited as a theoretical basis of the teaching put forward.64
A concurrent factor, as I have already suggested, is a certain
mistrust of law or the politically normative as the (or, at least, a) basis
for ethics and ethical judgments. Again, one notices this especially on
the European continent, where a very commendable aversion to
fascism has shaped much contemporary thought.65 In philosophy,
this aversion tends to push thinkers toward existentialism and other
theories that attempt somehow to derive ethics from the individual
agent or from the nature of the human person rather than from
societal norms. This general trend is very much present, of course, in
the “personalism” of Karol Wojtyła, although he makes a valiant
effort to work a role for law into the foundations of his ethics.66

Catechism clearly intends to assimilate killing in war and capital punishment to self-defense.
CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2263.
64. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, passim.
65. Cf. WOLIN, supra note 38, at xii–xv (arguing that the reactions to fascism did not
succeed in shaking off its philosophical presuppositions).
66. See KAROL WOJTYŁA, L’uomo nel Campo della Responsabilità, in METAFISICA DELLA
PERSONA 1233, 1255 (Giovanni Reale & Tadeusz Stycze eds., 2003).
Quindi—e qui la nostra posizione è diversa da quella di alcuni fenomenologi, fra cui
Scheler—non è possibile alcuna constatazione del bene, del male o del valore morale
senza un riferimento all’ordine normativo, senza entrare in questo ordine.
[Therefore—and here our position is different from that of some phenomenologists,
including Scheler—no authentication of good, of evil or of moral value is possible
without reference to the normative order: without entering into this order.]
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416 AVE MARIA LAW REVIEW [Vol. 5:2

There is, however, a way of maintaining the recent teaching of the


Catholic Church regarding capital punishment, especially the idea
that present societal conditions alter matters in such a way that the
cases of “necessary,” and therefore licit, capital punishment “are very
rare, if not practically non-existent,”67 without making use of forced
interpretations of St. Thomas Aquinas and without falling into pure
personalism. The way forward is a more comprehensive under-
standing of how both Aristotle and Aquinas understood natural law,
and, in particular, how the natural law bears upon such issues as
capital punishment and killing in war.
In the final pages of Evelyn Waugh’s biography of Edmund
Campion, just after his account of the Jesuit martyr being dragged
through the streets of London to Tyburn, we read the following
words:

Sir Francis Knollys, Lord Howard, Sir Henry Lee and other
gentlemen of fashion were already waiting beside the scaffold.
When the procession arrived, they were disputing whether the
motion of the sun from east to west was violent or natural; they
postponed the discussion to watch Campion, bedraggled and mud-
stained, mount the cart which stood below the gallows.68

Why, at that time and place, were Knollys, Howard, and Lee
discussing whether the motion of the sun is violent or natural?
Waugh tells us nothing more, and I doubt that he knew why the three
were discussing that particular theme. He apparently recounts the
incident simply as indication of their insouciance regarding the events
about to ensue.69 But the conversation was anything but unrelated to
the issue of capital punishment, which Campion was shortly to suffer.

Id. at 1255 (author’s translation in brackets). It is unfortunate that the essay “L’uomo nel campo
della responsabilità” remains unfinished, for we receive in it some indication that Wojtyła was
uncomfortable with Scheler’s antinomianism.
67. CATECHISMUS CATHOLICAE ECCLESIAE, supra note 8, ¶ 2267 (quoting Evangelium Vitae,
supra note 7, ¶ 56).
68. EVELYN WAUGH, EDMUND CAMPION: A LIFE 197 (Ignatius Press 2005) (1935).
69. Waugh takes the story from RICHARD SIMPSON, EDMUND CAMPION: A BIOGRAPHY 319
(1867). Simpson connects it in a tentative manner with Campion’s offer at the end of his
second day of interrogation in London Tower “to prove, against all the philosophy of
Cambridge, that the heavens were hard, made of crystal, and (doubtless) whirling the sun,
moon, and stars round with them, either by their own natural course or by some external
impulse impressed upon them.” Id.
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2007] CAPITAL PUNISHMENT AND THE LAW 417

According to the astronomical theory that Aristotle followed and


that was actually developed by his associates, Eudoxus and
Callippus, one can explain the diverse movements of the celestial
bodies by positing a series of concentric spheres revolving around a
center (the earth), but whose axes are embedded in one another at
diverse points.70 The movement of the “fixed stars” (those in the sky
with the most regular movement) is explained by their association
with the outermost sphere, the movement of which depends just on
its own axis.71 The movement of the “wandering stars” (the “planets”
or planētes, which is Greek for “wanderers”), is explained by their
association with spheres below the outermost sphere.72 The
movement of a planet’s proper sphere depends not only on its own
axis but also on the movement of the sphere into which this axis is
embedded; and that sphere’s movement depends on any sphere into
which its axis might be embedded, and so on, until one comes to the
outermost sphere.73 By positing multiple spheres in this way, with
their axes set at various angles with respect to one another, Aristotle’s
colleagues were able to provide mathematical models that, with
varying degrees of accuracy, corresponded to the retrogressions and
loops traced out by the planets as they move through the night sky.74
In the second book of his treatise De Caelo, Aristotle says that the
movement of the outermost sphere is utterly simple since both this
sphere and its mover (God) are simple, ungenerated, indestructible,
and unchanging.75 The movements of the lower spheres, including

70. Aristotle mentions Eudoxus and Callippus and their theory in his Metaphysics.
ARISTOTLE, METAPHYSICS, Bk. XII, Ch. 8, 1073b18–35 (W.D. Ross trans.) [hereinafter
METAPHYSICS], found in 2 THE COMPLETE WORKS OF ARISTOTLE 1552, supra note 5, at 1696–97.
71. ON THE HEAVENS, supra note 5, Bk. I, Ch. 9, 277b27–279b3, found in 1 THE COMPLETE
WORKS OF ARISTOTLE, supra note 5, at 461–463; METAPHYSICS, supra note 70, Bk. XII, Ch. 8,
1073b25–26, found in 2 THE COMPLETE WORKS OF ARISTOTLE, supra note 5, at 1696–97.
72. METAPHYSICS, supra note 70, Bk. XII, Ch. 8, 1073b18–31, found in 2 THE COMPLETE
WORKS OF ARISTOTLE, supra note 5, at 1697.
73. Id.
74. The works of Eudoxus and Callippus no longer survive; most of what we know about
them comes through Aristotle. It may be, however, that The Spherics, attributed to Theodosius
of Bithynia (second century B.C.), was either written by Eudoxus or based on his work.
Theodosius Tripolites: Sphaerica (J.L. Heiberg ed., Weidmannsche Buchhandlung 1927) (n.d.).
75. See ON THE HEAVENS, supra note 5, Bk. II, Ch. 10, 291a30–291b3, found in 1 THE
COMPLETE WORKS OF ARISTOTLE, supra note 5, at 480.
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418 AVE MARIA LAW REVIEW [Vol. 5:2

the spheres governing the sun, are not as regular, “for the lower
spheres exhibit a composition of several movements into one.”76
Aristotle then makes a startling remark concerning not stars and
mathematical models but life on earth. Having denied once again
that irregularity of movement is possible for the outermost sphere, he
argues:

For . . . [r]etardation is always due to incapacity, and incapacity is


unnatural [para phusin]. The incapacities of animals, old age,77
decay, and the like, are all unnatural [para phusin], due, it seems, to
the fact that the whole animal complex is made up of materials
which differ in respect of their proper places, and no single part
occupies its own place. If therefore that which is primary contains
nothing unnatural [para phusin], being simple and unmixed and in
its proper place and having no contrary, then it has no place for
incapacity, nor, consequently, for retardation or (since acceleration
involves retardation) for acceleration.78

There are many things going on in this passage but its central and
most interesting idea is that any irregular movement or alteration—all
of which occurs below the first celestial sphere—is unnatural. One
might debate whether the motion of the sun should be characterized
as unnatural, since its movement does not involve fits and starts as do
those of the planets (and perhaps this is the particular point that
Knollys, Howard, and Lee were discussing as they awaited the
execution of Edmund Campion), but there can be no question that
Aristotle holds (at least in this passage) that the whole animal
kingdom, to which man belongs, is marked by unnaturalness. All the
“incapacities of animals,” he says, such as “old age, decay, and the
like” are “unnatural.”79
But why were Knollys, Howard, and Lee discussing this
particular issue? And what is the connection with capital
punishment? The answer is that this passage was used within the
Aristotelian tradition, with which all educated persons of the time

76. Id. Bk. II, Ch. 6, 288a15, found in 1 THE COMPLETE WORKS OF ARISTOTLE, supra note 5, at
475.
77. The author has altered the translation here; that is to say, at Bk. II, Ch. 6, line 288b16, he
has translated géras as “old age.”
78. Id. Bk. II, Ch. 6, 288b12–22, found in 1 THE COMPLETE WORKS OF ARISTOTLE, supra note
5, at 476.
79. Id.
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2007] CAPITAL PUNISHMENT AND THE LAW 419

were familiar, to account for certain things in human life that are both
natural and unnatural. Aristotle says in the passage above that even
apparently natural occurrences, such as old age and decay,
contravene nature.80 But such occurrences are very much part of
nature as we know it. So, Aristotle must have in mind a special sense
of nature that old age and decay are against.
The primary sense of nature, then, would include just the
“positive aspects” of things: regular rather than interrupted motion,
magnanimity rather than constriction, and life rather than death. A
secondary sense of nature (or the natural) would include such things
as old age and death. This is the sense one has in mind when one says
that to grow old and to die are natural. But even one who says this
must acknowledge that they are not natural in the way that robust
health and life are natural. There is something disordered—even
“wrong”—especially about death. Similarly, it is in a sense quite
natural for brute animals to kill one another for nourishment, and yet
when we see a deer laid low by a wolf we sense that something is not
right with the world.
One can apply the same type of analysis within the political
sphere. There are some aspects of human society that are unalloyed
goods: telling the truth, for instance, or being faithful to one’s spouse.
Such things are natural in the strictest and the highest sense. But
other things are natural by virtue of a sort of derogation from a higher
natural law. Killing in war is a good instance. Man has always
organized armies and fought with his enemies (whether for defensive
or offensive purposes): that is part of “what man does.” Yet, in a just
world, the killing brought about in war is always “hemmed in,”
requiring legal restriction in a way unnecessary for its positive
counterpart, friendly relations. The killing that occurs in war is good
only there: in war. If a man leaves the army—and does not become,
for instance, an officer of the law—and he continues to kill, he does so
as an outlaw. So, the default position is always peaceful relations
with others, even though in certain contexts it can be quite right and
not contrary to nature (at least in a secondary sense) to kill. Within
such contexts, killing can be a good thing; outside such contexts, we
find not an ethical no man’s land in which either killing and not
killing are of equivalent moral status: the default position is peace.

80. Id.
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420 AVE MARIA LAW REVIEW [Vol. 5:2

B. The Integration of Aristotle’s Understanding of the Natural with


Christian Thought

The Aristotelian distinction between two senses of the natural


found its way into mainstream Christian thought, especially during
the scholastic period; Knollys, Howard, and Lee would certainly have
been influenced by this tradition, which was still alive, for instance, at
Oxford.81 There is a passage in St. Thomas Aquinas’s commentary on
Peter Lombard’s Sentences where he employs these ideas in
connection with slavery and even cites the passage from De Caelo.
The particular question before him is whether the condition of
servitude (or slavery) can be an impediment to marriage. He writes:

[N]othing prohibits something’s being contrary to the first intention


of nature without its being contrary to its second, just as every
corruption and defect and growing old is, as is said in De caelo,82
contrary to nature (since nature intends being and perfection) but is
not contrary to nature according to the second intention of nature.
For, since nature cannot preserve being in one thing, it preserves it in
another which is generated from the corruption of the first; and,
when nature cannot achieve a greater perfection, it effects a lesser, as
when nature cannot make a male and makes a female, which is a
botched male, as is said in De generatione animalium.83 Similarly, I
say that servitude is contrary to the first intention of nature but not
contrary to the second. For natural reason tends toward—and nature
desires—everyone’s being good, but in as much as someone sins

81. J. M. Fletcher writes as follows of Elizabethan Oxford: “The older authorities, Euclid,
Vitellius, John of Holywood, Ptolemy and the Theorica planetarum still determined the study of
geometry and astronomy, with only the later Orentius added.” J.M. Fletcher, The Faculty of
Arts, in 3 THE HISTORY OF THE UNIVERSITY OF OXFORD 157, 174 (James McConica ed., 1986).
82. ON THE HEAVENS, supra note 5, Bk. II, Ch. 6, 288b12–22, found in 1 THE COMPLETE
WORKS OF ARISTOTLE, supra note 5, at 476. St. Thomas cites this passage or discusses the concept
at least three other times—see, for example, ST. THOMAS AQUINAS, COMMENTARY ON
ARISTOTLE’S PHYSICS ¶ 739 (Richard J. Blackwell et al. trans., Yale Univ. Press 1963); ST. THOMAS
AQUINAS, TRUTH, Q. 13, Art. 1 (James V. McGlynn trans., Henry Regnery Co. 1953); ST. THOMAS
AQUINAS, ON THE POWER OF GOD, Q. 6, Art. 1 (English Dominican Fathers trans., Newman Press
1932)—not to mention, of course, ST. THOMAS AQUINAS, ON THE HEAVENS, Bk. II, Lecture 9,
Ch. 375; see also SUMMA THEOLOGICA, supra note 4, Pt. I-II, Q. 94, Art. 5. I discuss many of these
passages in Kevin L. Flannery, S.J., Moral Taxonomy and Moral Absolutes in Aristotle and
Thomas Aquinas, in LAWRENCE DEWAN, FESTSCHRIFT (Peter A. Kwasniewski ed., Catholic Univ.
of Am. Press, forthcoming 2007) [hereinafter Moral Taxonomy ].
83. ARISTOTLE, GENERATION OF ANIMALS, Bk. II, Ch. 3, 737a27–29 (A. Platt trans.)
[hereinafter GENERATION OF ANIMALS], found in 1 THE COMPLETE WORKS OF ARISTOTLE, supra
note 5, at 1111, 1144.
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2007] CAPITAL PUNISHMENT AND THE LAW 421

nature also tends to bear punishment for sin; and thus servitude was
introduced as punishment for sin.84

There are ideas in this passage that are considered unacceptable


today, such as the notion that the female is a “botched male” (mas
occassionatus ) and the belief that slavery is according to nature. I
cannot go into such matters here except to say briefly, with regard to
the second, that Aquinas is responding to the objection that “that
which is against nature cannot impede that which is according to
nature” (i.e., marriage).85 Aquinas holds that a spouse’s concealing
his or her status as a slave can impede marriage,86 so, his overall
intent is not to justify slavery but to promote transparency in the
covenant of marriage.
What interests us here is not St. Thomas Aquinas’s understanding
of women, marriage, or slavery, but rather how these basically
Aristotelian ideas provide us with a means of situating the
phenomenon of capital punishment within ethical theory in general
and also with a means of articulating the truth that capital
punishment is, in a sense, natural and, in another sense, unnatural.
This, in turn, gives us a means of accepting both the traditional
teaching that capital punishment is according to natural law and also
Pope John Paul II’s teaching that it is “both cruel and unnecessary.”87

84. SENTENCES, supra note 58, Tome IV, Distinction 36, Q. 1, Art. 1 (author’s translation).
85. Id.
86. The main body of the same article reads:
I respond saying that in a contract of marriage one spouse is obliged to render the
debt [of conjugal intercourse] to the other; and, therefore, if he who obligates himself
is incapable [impotens] of resolving this obligation, ignorance of this incapacity on the
part of the person with respect to whom the obligation is undertaken cancels the
contract. But, just as through an incapacity to engage in sexual intercourse someone is
made incapable [impotens] of resolving the debt in such a way that he is entirely
unable to resolve it, so also through servitude he is unable freely to render the debt.
And so, just as an unknown incapacity to engage in sexual intercourse impedes
marriage but this is not the case if it is known, so also an unknown condition of
servitude impedes marriage but known servitude does not.
Id. (emphasis added).
87. See Pope John Paul II, Homily at Trans World Dome, supra note 8, ¶ 5.
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422 AVE MARIA LAW REVIEW [Vol. 5:2

C. Application to Capital Punishment of the Two-Tiered Approach


to the Natural

We have already seen how Aristotle’s two-tiered approach to


what is natural can be applied to political issues such as killing in
war.88 In a secondary sense (although this is the sense most
immediately pertinent to political life as such), killing in war is
according to natural law. Given the conditions of life in an imperfect
world, a nation that defends itself by means of intentional killings can
be acting in a perfectly natural—that is to say, ethical—way. But in
the primary sense of what is natural, all killing is unnatural.89 Thus,
once the conditions that allow for war’s naturalness are no longer
present, the killing that was once natural becomes unnatural.
Moreover, since “second intention natural law” is a derogation from
“first intention natural law,” the latter enjoys a privileged status such
that, if it is possible to apply it, one should. In other words, one
should always prefer peace, although war is not per se immoral.
We can say similar things with respect to capital punishment.
Throughout the history of the Church, Catholic philosophers and
theologians have said that capital punishment is licit.90 But they have
done this without ever denying that, in a more abstract sense, any
such killing goes against what is favored even by nature. Given certain
conditions, capital punishment is a perfectly reasonable political
expedient.91 Since reasonableness determines morality, this expedient
found its way into human law in a relatively permanent way; indeed,
there are very few Christian (or formerly Christian) nations in
existence today that have not had some form of capital punishment in
their legal history. But, even still, few of these nations (or their legal
experts) would have resisted the argument that there is something

88. See supra Part III(B).


89. A chapter in Aristotle’s Rhetoric suggests just this conclusion. The chapter begins with
remarks about natural as opposed to positive law; it then cites Empedocles who bids us to “kill
no living creature” and describes this as “an all-embracing law, through the realms of the sky,
unbroken it stretcheth, and over the earth’s immensity,” but then, within a few lines, Aristotle
asserts that it is wrong for a man to refuse military service. ARISTOTLE, RHETORIC, Bk. I, Ch. 13,
1373b1–25 (W. Rhys Roberts trans.), found in 2 THE COMPLETE WORKS OF ARISTOTLE, supra note
5, at 2152, 2187; see also Moral Taxonomy, supra note 82 (arguing that Aristotle, in this passage,
is employing the two-tiered approach to the natural that we find in ON THE HEAVENS, supra
note 5, Bk. II, Ch. 6, 288a15–289a12, found in 1 THE COMPLETE WORKS OF ARISTOTLE, supra note
5, at 475–76).
90. See BRUGGER, supra note 61, at 74–138.
91. See supra text accompanying notes 29–36.
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2007] CAPITAL PUNISHMENT AND THE LAW 423

foul or disordered about the practice. In itself killing is bad, but


allowed. Mercy, in itself, is good and invoked whenever possible and
appropriate.

IV. CONCLUSION

The truth that informs Pope John Paul II’s teaching on capital
punishment is, I believe, that killing in itself is unnatural, but is
allowed in exceptional circumstances. Moreover, in my opinion, it
would have been better to express this truth in the traditional terms
found in Aristotle and St. Thomas Aquinas than (as in the Catechism
and Evangelium Vitae ) to attempt to assimilate it to personal self-
defense. Obviously, the Church cannot give an account of natural law
in its two intentions that relies on the ancient theory of the celestial
spheres. But it is characteristic of Aristotle that, although he often ties
his philosophical doctrines to the scientific theories of his day, his
philosophy can stand on its own feet.92 The astronomical theory
which, up until the days of Bellarmine and Galileo, served to make
Aristotle’s metaphysics more convincing, can now be regarded as an
accessory—an illustration rather than an integral part of the
philosophical machinery.
By discarding the account of capital punishment in terms of
personal self-defense, the Church would be distancing herself from an
unfortunate misinterpretation of an important text in St. Thomas
Aquinas—that is to say, of the locus classicus for the principle of
double effect and for the allowance of personal self-defense.93 The
Church would also be removing one source of confusion among
contemporary ethicists regarding the role of intention in the analysis
of human action.

92. See, e.g., METAPHYSICS, supra note 70, Bk. VI, Ch. 1, 1025b1–1026a32, found in 2 THE
COMPLETE WORKS OF ARISTOTLE, supra note 5, at 1619–20; id. Bk. VII, Ch. 2, 1028b9–32, found in
2 THE COMPLETE WORKS OF ARISTOTLE, supra note 5, at 1624 (where Aristotle uses the immaterial
substances that govern the celestial spheres in order to get argumentatively to the first unmoved
mover). Aristotle might just as well have used the human intellect, which he also acknowledges
to be (in some sense) separate from matter and, therefore, midway between purely material
substances and the ultimate divine substance. See ARISTOTLE, ON THE SOUL, Bk. II, Ch. 2,
413b25–30 (J.A. Smith trans.), found in 1 THE COMPLETE WORKS OF ARISTOTLE, supra note 5, 641,
658–59; GENERATION OF ANIMALS, supra note 83, Bk. II, Ch. 3, 736b25–32, found in 1 THE
COMPLETE WORKS OF ARISTOTLE, supra note 5, at 1143. Like the secondary celestial unmoved
movers, the intellect is in itself independent of any corporeal organ and, therefore, of the
standard physical causal nexus.
93. SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7.
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424 AVE MARIA LAW REVIEW [Vol. 5:2

APPENDIX: A NOTE ON THE PRINCIPLE OF DOUBLE EFFECT

Although the basic ideas it employs can be traced back to the first
half of the third book of the Nicomachean Ethics, where Aristotle sets
out criteria for assigning moral responsibility for actions, the principle
of double effect itself is usually traced back no further than
St. Thomas Aquinas and, in particular, Part II-II, Question 64, Article
7 of his Summa Theologica (“Whether it is licit for someone to kill
someone in self-defense”).94 In the course of that article, Aquinas says
that “the act of self-defense can have a double effect [duplex
effectus ];” he argues that in some cases the death of the assailant,
which is one of the two effects, need not render the act illicit.95 The
principle became associated for a while with the Society of Jesus (the
Jesuits), largely because of the biting criticism put forward by Blaise
Pascal in, for instance, the seventh of his Provincial Letters (written in
1656) where he satirizes the Jesuits’ “grande methode de diriger
l’intention.”96
The principle appears in all the manuals of moral theology used
by Catholic seminarians and priests during the nineteenth century
and into the twentieth, up until the Second Vatican Council. One
such manual, the Compendium Theologiae Moralis by Jean Pierre
Gury, formulates the principle as follows: “It is licit to posit a cause
that is either good or indifferent and from which follows immediately
a twofold effect, one good and one evil, provided that there is present
a proportionately grave reason [causa proportionate gravis ] and that
the end of the agent is good [honestus ]—that is to say, if he does not

94. Id. There are many useful articles and materials on the history of the principle of
double effect. See, e.g., THE DOCTRINE OF DOUBLE EFFECT: PHILOSOPHERS DEBATE A
CONTROVERSIAL MORAL PRINCIPLE (P.A. Woodward ed., 2001); Thomas A. Cavanaugh,
Aquinas’s Account of Double Effect, 61 THOMIST 107 (1997); Christopher Kaczor, Double-effect
Reasoning from Jean Pierre Gury to Peter Knauer, 59 THEOLOGICAL STUD. 297 (1998); Joseph T.
Mangan, An Historical Account of the Principle of Double Effect, 10 THEOLOGICAL STUDIES 41
(1949); W. David Solomon, Double Effect, in 1 THE ENCYCLOPEDIA OF ETHICS 418–20 (Lawrence
C. Becker & Charlotte B. Becker eds., 2d ed., Routledge 2001); see also Alison McIntyre, Doctrine
of Double Effect, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, July 28, 2004,
http://plato.stanford.edu/entries/double-effect/; Jörg Schroth, Literatur zum Prinzip der
Doppelwirkung [List of References for the Principle of Double Effect], Mar. 22, 2006,
http://wwwuser.gwdg.de/~sophia/schroth/bpdw.pdf.
95. SUMMA THEOLOGICA, supra note 4, Pt. II-II, Q. 64, Art. 7.
96. 1 BLAISE PASCAL, LES PROVINCIALES 234 (Editions de Cluny 1943).
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2007] CAPITAL PUNISHMENT AND THE LAW 425

intend the evil effect.”97 In the same place, Gury formulates rules for
application of the principle: (1) the agent’s end must be good; (2) the
cause to be posited must be good or, at least, indifferent; (3) the good
effect must be immediate; and (4) there must be present a grave
reason for positing the good cause and the agent must not be bound
either by justice or office or charity to omit the act.98
Following such rules, theologians (“the approved authors”) and
occasionally also, in a definitive way, the Church’s teaching
Magisterium formulated answers to difficult moral questions. A
noteworthy example is the question of whether it is permissible to
perform a hysterectomy upon a woman with a cancerous uterus who
is also pregnant. The answer was in the affirmative, provided the
operation would have to be performed even if the woman were not
pregnant.99 Another example is the question of whether a craniotomy

97. JEAN PIERRE GURY, COMPENDIUM THEOLOGIAE MORALIS, Ch. 8, at 5–6 (A. Ballerini & A.
Sabetti eds., 18th ed., Fr. Pustet & Co. 1906) (1850) (author’s translation).
98. Id.
99. 2 ARTHUR VERMEERSCH, THEOLOGIAE MORALIS: PRINCIPIA—RESPONSA—CONSILIA,
ch. 585, at 453 (3d ed. 1945) (author’s translation throughout footnote, with the original in
brackets). Vermeersch does not actually mention cancer but speaks simply of a lethal malady
(mater letali morbo affecta). Id. He speaks of “necessary remedies which, at the same time
[simul ] as they heal the malady, bear with them the danger of an abortion.” Id. It is
permissible, he says, to remove “the adversely affected uterus itself which can no longer be
tolerated without risk to life [sine vitae discrimine].” Id. Vermeersch considers such cases
under the rubric “[i]ndirect abortion for reasons of grave and proportionate cause,” and says
that they are “admitted by all” (i.e., all theologians). Id. (emphasis omitted). For the non-
controversial character of such cases, see generally JOHN CONNERY, ABORTION: THE
DEVELOPMENT OF THE ROMAN CATHOLIC PERSPECTIVE 223, 298 (1977). In the same section,
Vermeersch discusses whether, in order to restore the uterus to its former state (ad reponendum
uterum), it is permissible to evacuate the amniotic fluid. VERMEERSCH, supra, at 453. This is
controverted, he says, but he notes that evacuating the fluid is often a means to abortion (and in
that case, of course, immoral). VERMEERSCH, supra, at 453. He goes on to say that, if the fetus,
“not simply qua fetus but, for example, qua diseased” [non simpliciter qua fetus sed v. g. qua
morbidus], appears to be effecting positive and grave harm, such cases ought to be studied
closely but the principle always maintained that “by means of an action directly homicidal,
adopted as a means, no legitimate remedy can be obtained” [per actionem directe occisivam
assumptam ut medium, nulla utililas legilime oblineri potest ]. VERMEERSCH, supra, at 453 (first
emphasis added). This is standard language at the time, i.e., calling a procedure directly
homicidal even when the overall intention is not to kill the fetus. But see John Finnis et al.,
“Direct” and “Indirect”: A Reply to Critics of Our Action Theory, 65 THOMIST 1, 28–30 (2001).
See also 1 AUGUSTINUS LEHMKUHL, CASUS CONSCIENTIAE §§ 522–26, at 266–68 (1903). Nor is
Lehmkuhl unique in assuming that the Holy See was employing the same language; he notes
that the Holy Office had decreed “it is not safely taught that possibly licit in order to save the
mother might be the surgical operation of craniotomy or any other operation directly homicidal
with respect to the fetus, even if otherwise both mother and fetus will perish: thus the [decrees
of the Holy Office] of May 28, 1884 and August 19, 1889.” Lehmkuhl, supra, § 525, at 267
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426 AVE MARIA LAW REVIEW [Vol. 5:2

(cutting and collapsing of the cranium) might be performed upon a


fetus allowing it to pass through the pelvic cavity, if a woman (and
the fetus) would die should the operation not be performed. The
authoritative answer of the Sacred Congregation of the Inquisition (as
of 1965, the Sacred Congregation for the Doctrine of the Faith) was
that “this cannot safely be taught [tuto doceri non posse].”100 As was
standard practice, no reason was given, but doubtless the explanation
would have been that the “cause posited” (collapsing the skull of the
fetus and thereby killing it) is not good.101
Although the standard rules for application of the principle
corresponded to sound moral intuitions and produced good answers
for many such practical questions, they were not accompanied by a
theoretical basis clear and robust enough to pull Catholic thinkers
along with it in any specific direction when, immediately after the
Second Vatican Council, other approaches were put forward as
alternatives—and often as rivals—to the tradition of the manualists.
The school of thought known as “proportionalism”—criticized by
Pope John Paul II in the encyclical letter Veritatis Splendor 102—in fact
takes its name from Aquinas’s remark in Summa Theologica Part II-II,
Question 64, Article 7 that an act of self-defense must be
proportionate to its end (proportionatus fini ); furthermore, some of
its foundational texts purport to be expositions of the principle of
double effect.103 For these revisionist theorists, what is essential (i.e.,

(author’s translation of “S. Officium. . .decrevit, tuto doceri non posse licitam esse ad salvandam
matrem operationem chirurgicam craniotomiae vel quamcumque operationem directe foetus
occisivam, etsi alias et mater et foetus sint perituri. Ita d. 28 Maii 1884 et 19 Aug. 1889.”).
100. 17 ACTA SANCTAE SEDIS 556 (1884).
101. For the history of this issue, see generally CONNERY, supra note 99, at 189–303. See also
STEPHEN L. BROCK, ACTION AND CONDUCT: THOMAS AQUINAS AND THE THEORY OF ACTION 203–
07 (1998); FLANNERY, supra note 33, at 167–94; John Finnis, Intention and Side-effects, in
LIABILITY AND RESPONSIBILITY: ESSAYS IN LAW AND MORALS 32 (R.G. Frey & Christopher W.
Morris eds., 1991); John Finnis, Object and Intention in Moral Judgments According to St.
Thomas Aquinas, in FINALITÉ ET INTENTIONNALITÉ: DOCTRINE THOMISTE ET PERSPECTIVES
MODERNES 127 (J. Follon & J. McEvoy eds., 1992); Kevin L. Flannery, What Is Included in a
Means to an End?, 74 GREGORIANUM 499 (1993).
102. Pope John Paul II, Veritatis Splendor [Encyclical Letter Regarding Certain Fundamental
Questions of the Church’s Moral Teaching ] ¶¶ 65–83 (1993).
103. See Peter Knauer, The Hermeneutical Function of the Principle of Double Effect,
12 NAT. L. F. 132 (1967); Richard A. McCormick, Some Early Reactions to Veritatis Splendor,
55 THEOLOGICAL STUD. 481 (1994); Bruno Schüller, The Double Effect in Catholic Thought: A
Reevaluation, in DOING EVIL TO ACHIEVE GOOD 165 (Richard A. McCormick & Paul Ramsey eds.,
1978). But see Martin Rhonheimer, Intentional Actions and the Meaning of Object: A Reply to
Richard McCormick, 59 THOMIST 279 (1995).
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2007] CAPITAL PUNISHMENT AND THE LAW 427

ultimately decisive) in moral analysis is the proportion of good to be


effected by particular acts. But proportionalism contradicts Aquinas’s
ethics by denying that there are concrete types of acts, such as
murder, adultery, and lying, that are intrinsically immoral.
Even among non-dissenting Catholic moralists, the interpretation
and use of the principle of double effect has been unpredictable. In
1967, Philippa Foot (who ultimately rejects the principle) put forward
the infamous case of the “fat potholer.”104 An overweight spelunker,
leading an expedition out of a cave, gets caught in its mouth, facing
his fellow spelunkers. Water is coming up from behind; for some
reason, his colleagues have just one choice: blow him out of the
entrance with dynamite or drown along with him in the cave. When
Foot posed this thought-experiment, she clearly thought that
proponents of the principle of double effect would reject its
application in this case.105 But, in fact, Joseph Boyle—comrade-in-
arms with John Finnis and Germain Grisez—argued, on the grounds
of double effect, that the act would not constitute a direct act of
killing: “Foot’s colorful description of the explorers’ deliberation
notwithstanding, the double effect theorist can admit that the killing
of the hapless fat man is not direct; his death is not what opens the
cave but rather his being removed from the entrance.”106 Boyle has

104. Philippa Foot, The Problem of Abortion and the Doctrine of the Double Effect, 5
OXFORD REV. (1967), reprinted in PHILIPPA FOOT, VIRTUES AND VICES AND OTHER ESSAYS IN
MORAL PHILOSOPHY 19, 19–32 (2002). Her essay is a reply to H.L.A. Hart, Intention and
Punishment (1967), reprinted in PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF
LAW 113 (1968). Foot speaks of the example as “well known to philosophers.” Foot, supra, at
21. Later, she says that the fat man “is bound to be drowned with the others if nothing is done,”
Foot, supra, at 30, thereby making the example more specific than she does earlier where she
writes: “In one version the fat man, whose head is in the cave, will drown with them; in the
other he will be rescued in due course.” Foot, supra, at 21.
105. She writes:
For suppose that the trapped explorers were to argue that the death of the fat man
might be taken as a merely foreseen consequence of the act of blowing him up. (“We
didn’t want to kill him . . . only to blow him into small pieces” or even “. . . only to
blast him out of the cave.”) I believe that those who use the doctrine of the double
effect would rightly reject such a suggestion, though they will, of course, have
considerable difficulty in explaining where the line is to be drawn.
Foot, supra note 104, at 21–22.
106. Joseph Boyle, Double-effect and a Certain Type of Embryotomy, 44 IRISH THEOLOGICAL
Q. 303, 307 (1977). Boyle believes, however, that the killing might be disallowed on grounds
other than its being a direct killing. Id.
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428 AVE MARIA LAW REVIEW [Vol. 5:2

made analogous arguments with respect to craniotomy and has been


defended by Finnis and Grisez.107
These three scholars have not brought even many of their friends
along with them in maintaining this position. This author believes
that craniotomy (as the example is used in the philosophical and
theological literature) is direct killing; I believe, moreover, that double
effect reasoning can be put on a more solid basis—and the wild
fluctuations of interpretation of the past thirty years avoided—by
following the indications of St. Thomas Aquinas in Part II-II, Question
64, Article 7 of the Summa and incorporating into such reasoning
consideration of law and of the logical structure of the acts in
question.108 The logical structure of a human act is largely dependent
upon its character as a movement (or kinēsis) in the Aristotelian sense,
and understanding human acts in this way allows us to see that any
human act must have an object distinguishable from the action itself,
although part of it in the sense that the object helps to define what
constitutes completion of that action. Combining this approach with
the idea that the humanly natural depends on the intelligibility of
human practices (such as medicine), one can show that, when there is
present a proportionate reason, hysterectomy of even a gravid
(pregnant) uterus is licit but that craniotomy is not, since craniotomy,
unlike hysterectomy, is not part of medicine. Craniotomy cannot be
part of medicine—properly conceived—since it does no medical good
for its object: the fetus, whose cranium is collapsed.

107. Id.; see also Joseph Boyle, Who Is Entitled to Double Effect?, 16 J. MED. & PHIL.
475 (1991). For further discussion on intentional killing in double-effect theory, see Joseph
Boyle, Praeter Intentionem in Aquinas, 42 THOMIST 649 (1978); Joseph Boyle, Further Thoughts
on Double Effect: Some Preliminary Responses, 16 J. MED. & PHIL. 565 (1991).
108. See FLANNERY, supra note 33, at 167–94; see also BROCK, supra note 101, at 49–136.

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