Prudential Judgment and the Death Penalty

Frodo: I am frightened; and I do not feel any pity for Gollum. … he is as bad as an Orc, and just an enemy. He deserves death.

Gandalf: Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment. For even the very wise cannot see all ends. I have not much hope that Gollum can be cured before he dies, but there is a chance of it.
— J.R.R. Tolkein. The Lord of the Rings. The Fellowship of the Ring. Book One. II. The Shadow of the Past

The Great State of Missouri executed three men since November and that prompted me to get down to work on this essay again. It had been cooking in my mind since this past summer. I don't recall the circumstances, but a conversation had turned to the topic of capital punishment. I'd cited the Catechism on the point, and asserted that in Missouri in 2013 capital punishment isn't licit. I heard something like this in reply:

The Church is not against the death penalty – she leaves it as a matter prudential judgment by Catholics, and that means the plain, everyday Catholics. The Church does not tell them they have to take college courses in theology, or do advanced research before making prudential judgments; she trusts them to make these prudential decisions for themselves. My prudential judgment is for capital punishment.

I was left speechless, rather an unusual condition for me. Later on I was struck by what the French call l'esprit d'escalier (staircase inspiration or wit) and thought to myself “The Church leaves decisions about war to our prudential judgment as well – you might as well say the Church is not against war!” It was (of course) too late for the perfect retort, and I'm reduced to writing an essay to unpack the reply that stunned me so. The plan of the essay will be:

1)       show what the moral teaching of the Church about the death penalty is

2)       discuss what the response of a faithful Catholic ought to be with respect to Church teaching

3)       discuss the meaning of Prudential Judgment and its application to this particular teaching

4)       discuss how a Catholic questions an authoritative teaching

Church Teaching on the Death Penalty

The subject of the death penalty has come up before. There have been two Church-wide or Universal Catechisms: The Roman Catechism of 1566 and the Catechism of the Catholic Church of 1994. Catechisms address questions people of the time have. Some of these are perennial: “What do we mean by Jesus is the 'Son of God'?” Others are from the time the Catechism was put together. Here are two Catechism articles written 400 years apart.

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. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord. (Roman Catechism of the Council of Trent, 1566, Part III, 5, n. 4)

The Roman Catechism of the Council of Trent defends capital punishment (under condition of just use) against the charge that it is no different from murder. But it does not say what “judicious exercise” or “just use” is. The Catechism of the Catholic Church of 1994 in no way contradicts the Catechism of 1566, but addresses this omission:

2267 Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor. If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person. Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non-existent.[1]” (Catechism of the Catholic Church, 1997 English language edition)

It isn’t necessary to look at both Catechisms, and may well be unhelpful, but I wanted to demonstrate the continuity as well as development. Plainly, the Church added-to what Trent said.

I have heard it said “that’s not infallible; it is only Pope John Paul’s opinion”. Indeed, it isn’t infallible but the second part doesn’t follow from that. So how do you recognize the difference between the private opinion of the Pope or another Bishop, and a genuine teaching requiring some sort of response from you? A short answer for plain, everyday Catholics is: if it is in an encyclical letter or in the Catechism, you can be certain it is Church teaching and not only a private opinion. It is certainly an exercise of the ordinary teaching authority (Magisterium in Latin) of the Church. If it comes in some official or semi-official publication like the diocesan newspaper or an e-mail from a Bishops’ Conference, it almost certainly is genuine Church teaching, but might not be. If it comes from a selectively-quoted interview in a magazine, it could be but it may be hard to tell.

Responses to Church Teaching

Very briefly, there are three or four kinds of Church teaching, depending on whose system you like better. Each demands a different kind of response from a faithful Catholic.

Type of Doctrine		Faithful Response
Infallible	Divinely Revealed God has a Triune Nature, murder is a sin	Assent – that is: hold firmly and irrevocably as true. In this case the reason for assent is that the doctrines come from God Himself – He defined them.
	Definitive Teaching Thomas Aquinas is a saint, abortion is a sin 1&2 Maccabees are canonical	Assent as above, because the Church told you these doctrines are certainly true, and you know by faith the Church teaches infallibly on matters of faith and morals.
Not Infallible	Authoritative Teaching Labor is not a commodity to be bought as cheaply as the market will bear[2]	Religious submission of mind and will, but the presumption in favor of the teaching can be overcome.
	Prudential Admonitions Latin is to be fostered[3]	Conscientious obedience, but the presumption in favor of the teaching can be overcome.

This is very, very far from being a complete explanation, but it is enough for plain, everyday Catholics. Some writers don’t include Prudential Admonitions under the head “Doctrine” but all agree that Prudential Admonitions require conscientious obedience. Well, almost all agree.

What does “religious submission of mind and will” mean? It means a couple of things: first that this response to the teaching isn’t assent. We do not believe in (most) moral teachings the way we believe in Divine Revelation or Definitive Teachings. Mainly, we’re expected to behave like we think them true. To the extent we don’t think them true, we’re expected to work to bring our minds into harmony with the Church on the point. We’re probably missing something.

Second, since we know by Faith that the Church tells us the truth about morals, an ill-considered contrary opinion or judgment is properly called rash and may not be safely taught[4],[5],[6]. Although plain, everyday Catholics probably shouldn’t, we can even question the teaching. As with all non-infallible teaching, we recognize there is a remote possibility it might be changed.

The Catechism articles say four different kinds of things about the death penalty:

1)       inflicting the death penalty with justice isn’t murder

2)       the aim of the death penalty is defense against unjust aggression

3)       without

1. full determination of identity and responsibility of the guilty, and


2. the absolute necessity of the death penalty to protect the public against the aggressor

the death penalty mustn’t be used

4)       there is a judgment of Pope John Paul evidently about the capabilities of penal facilities, taken from his encyclical Evangelium Vitae (The Gospel of Life) and a conclusion based on that judgment.

Taken all together, this is real Church teaching that requires either “a religious submission of mind and will” [7] or at the very least “conscientious obedience”. So where does Prudential Judgment come in and who makes it?

Prudential Judgment

The question of whether the state may have recourse to the death penalty is conditioned on concrete circumstances. The conditions are the subject of Prudential Judgment. St. Thomas says Prudence is the virtue by which we apply right reason concerning some action[8]. But “right reason” is a term of art in Catholic moral theology and always refers to reasoning about what to do. The term wouldn't apply, for example, to a proof in geometry even though flawlessly reasoned.

Prudence is the most intellectual of the moral virtues, and its exercise normally involves gathering the best facts relevant to some practical decision. The process of gathering facts is not an exercise of right reason, but the process of using those facts to arrive at a judgment concerning a course of action is. When we actually take that decision and act, we apply our right reason to the concrete situation at hand, and thereby exercise the virtue of Prudence.

If you had sound intuitions and inclinations that enabled you to make an urgent decision when there was not sufficient time to do much (or any) research, your action in that situation would also be considered “prudent” even if it turned out you were mistaken.

St. Thomas speaks of two kinds of judgment[9]:

1)       Judgment per modum inclinationis – by which he means something like “according to one’s inclinations”. It isn’t irrational, but you doesn’t think much about it, or study particularly to arrive at a particular judgment this way. If you had developed a certain virtue, good judgments concerning that virtue can flow just because the habit of that virtue inclines us that way. The term “virtue” should not be read too narrowly either. Expertise is a kind of virtue, and when I might judge that a less expensive bit of technology would serve as well as a more expensive one in a home data network that is still a real judgment per modum inclinationis. I could explain why if asked, but I didn’t have to think (much) about it because I have intimate, in-depth knowledge of the subject.

2)       Judgment per modum cognitionis – by which he means something like “through study or by the use of reason”. If asked what network infrastructure was needed for a university campus, there would be a lot more of this kind of judgment involved than for a home network even though I have expertise in the topic. This extends of course to Moral Theology. Even if I haven’t got the virtue of (say) Obedience, I could still determine what is true of the virtue of Obedience so long as I’ve got the virtue of studiousness. I don’t have to have the habit of Obedience to speak rightly about it, or even recommend it.

Prudential Judgment therefore is making a judgment about what to do: in this case, whether or not the state should have recourse to the death penalty. For most of us, this comes to making a judgment about whether to support a public law that permits capital punishment. Since we have ample time for reflection and the subject matter is grave, the sort of judgment demanded by Prudence is judgment per modum cognitionis.

Plain Everyday Catholics

But what about plain, everyday Catholics who have not taken college courses in theology or undertaken advanced research? Do they get to use Prudential Judgment? The first thing to say is that all Catholics should presume the Church’s moral teaching is right – you can’t simply dismiss Catholic moral teaching because it is at odds you’re your personal inclinations, or with the way it has always been, or because you can think of some argument against it. A Catholic should be docile, literally “teachable”. There is no point in having a magister, a teacher if you’re not teachable.

If you lack the tools for making a judgment per modum cognitionis, or simply don’t want to do the work required, then the minimum prudent course of action is to obey. In this case, at minimum you refrain from supporting policies in favor of the death penalty. Doing, even saying, something contrary is rash on your part. If you have your doubts about the teaching and must talk about it, you can say “The Church teaches us…” and not offer an opinion of your own. In conversation with others, it would be praiseworthy to explain why the Church teaches what she does if you can (don’t get it wrong – bad apologetics is worse than silence) but it wouldn’t be in any way obligatory.

Going Deeper

Those who have primary responsibility for implementing public policy and those specially charged with assisting them have a duty to make Prudential Judgments concerning their particular roles. Teachers, and that can include parents, should at least understand the process required to make these judgments. And it is good to be interested in how the Church reasons, so you might want to understand more. How would you proceed?

This particular moral teaching is very like another one: the Just War framework that has its origin with St. Augustine. This framework falls at least into the Authoritative Teaching category, if not the Definitive category. It has a list of conditions that must be met before you can decide to go to war.

• the damage inflicted by the aggressor on the nation or community of nations must be
  
  
  
  • lasting
  
  
  • grave, and
  
  
  • certain;
  
  
  
  


• all other means of putting an end to it must have been shown to be impractical or ineffective;


• there must be serious prospects of success;


• the use of arms must not produce evils and disorders graver than the evil to be eliminated

There is actually more to this, but you can see there is already a lot to think about, and a great deal of ambiguity. The Church does not give us pat answers most of the time. Similarly, before you can have recourse to the death penalty there are conditions to meet.

The death penalty framework sets a very high bar for deciding that the death penalty is licit under some concrete circumstance. You must give every word its full meaning in context. Can the identity of the guilty be fully determined? Can the responsibility of the guilty be fully determined? Are prisons sufficiently escape-proof to protect people’s safety from the unjust aggressor? Is absolute safety the only satisfactory safety? These are at least some of the questions that you must diligently ask and answer before you can hold the opinion that recourse to the death penalty is justified in Missouri.

What about Pope John Paul’s judgment “the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically non-existent.’”? He did not have any particular technical expertise on the subject of prison design when he wrote his encyclical, but we should presume he had ordinary knowledge. Perhaps he made his judgment per modum inclinationis. Probably not, but perhaps. Is it safe to ignore?

No, this judgment of his is very firmly connected to a moral teaching formally pronounced – it isn’t like a judgment on the relative merits of San Pellegrino and Perrier, or a quip in an interview. It deserves the most serious consideration and above all the benefit of any doubt. For example, it can help us understand what the Pope means by “effective defense” and “safety” in his moral teaching. It is the Pope’s opinion, but not only that because of where he expressed it.

Dissent?

To the extent we don’t think some authoritative teaching true, we’re expected to work to bring our minds into harmony with the Church on the point. What if you work and work, and just can’t? In the case of a prudential admonition, we’re not required to work at this, but simply to obey. Still, what if you think the teaching itself is wrong? What if you think the death penalty framework is too stringent? Does this make you a heretic? No – the teaching is not infallible. But you can’t stop there.

You can overcome the presumption in favor of the teaching, but only through a rigorous process. You must carefully address in your concrete circumstances each reason given by the Church for the teaching and show it is wrong before you can act contrary. Some of the reasons might not be in the Catechism itself – it is only a summary after all. Encyclicals are almost never self-contained; they reference a wide variety of material. Scripture very often has commentaries from the Fathers or Doctors of the Church. If you haven’t the tools to do this, the minimum prudent course of action is conscientious obedience as above. To start saying the teaching itself is wrong without conclusive grounds is at least rash and could be termed dissent.

Conclusion

The teaching of the Church on the death penalty is not infallible, but every part of it is at least a Prudential Admonition. Some parts of it may rise to the level of Authoritative Teaching. The minimum faithful response is conscientious obedience, and in action this doesn’t look very different from religious submission of mind and will. When the Church leaves a decision to our Prudential Judgment she doesn’t leave us free to do “whatever we like” or “whatever we’ve always done” or “whatever we can think of some reason for doing”. If you haven’t got the tools to make your own judgment, the only prudent thing is to rely on the Church’s judgment or on your Bishop’s judgment if the Church doesn’t make one. It is true that sometimes Bishops disagree. In this case you may be forced into the unfortunate position of having to rely on a consensus.

If you do form your own judgment, before you can act, there is at least a little work to do, maybe a lot. Most of the time, the Church will provide an analysis framework so we can 1) know what the relevant criteria are, and 2) surface assumptions and assertions of fact for examination. Both are critical for avoiding rash action and error. Most moral teachings are not infallible. In this case, you are allowed to question the substance of the teaching itself, but you can’t simply dismiss it, and you need conclusive grounds to disobey.

 

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[1] John Paul II. Vatican. Evangelium Vitae. The Gospel of Life. 25 March 1995. [56]

[2] Leo XIII. Vatican. Rerum Novarum. On Capital and Labor. [44, 45]

[3] Paul VI. Vatican. Sacrosanctum Concilium. Constitution on the Sacred Liturgy. 4 December 1963 [54]

[4] John Paul II. Vatican. Ad Tuendam Fidem. To Protect the Faith. 18 May 1998.

[5] Congregation for the Doctrine of the Faith . Vatican. Professio Fidei. Profession of Faith and the Oath of Fidelity. 9 January 1989.

[6] Congregation for the Doctrine of the Faith . Vatican. Doctrinal Commentary on the Concluding Formula of the Professio Fidei.

[7] John Paul II. Vatican. Ad Tuendam Fidem.

[8] Aquinas. Summa Theologica. [II-II, q. 47, a. 4]

[9] Aquinas. Summa Theologica. [I-I, q. 1, a. 6, ad 3m]