Saint Thomas Aquinas on the Death Penalty Author: Elinor Gardner Persistent link: http://hdl.handle.net/2345/712 This work is posted on eScholarship@BC, Boston College University Libraries. Boston College Electronic Thesis or Dissertation, 2009 Copyright is held by the author, with all rights reserved, unless otherwise noted. Boston College The Graduate School of Arts and Sciences Department of Philosophy SAINT THOMAS AQUINAS ON THE DEATH PENALTY A dissertation by SISTER ELINOR GARDNER, O.P. submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy May 2009 © copyright by SISTER ELINOR GARDNER, O.P. 2009 BOSTON COLLEGE ABSTRACT SAINT THOMAS AQUINAS ON THE DEATH PENALTY by Sister Elinor Gardner, O.P. Chairperson of the Supervisory Committee: Father Arthur Madigan, S.J. Department of Philosophy Catholic moral philosophers and theologians for centuries used Thomas Aquinas’s defense of the death penalty as a point of reference in defending the state’s right to execute. Recent Church documents such as Evangelium Vitae , however, seem to take a different approach to the question than Aquinas did. In secular contemporary treatments of the death penalty, Aquinas’s account is often caricatured or simply overlooked. One of the reasons for this is the lack of a thorough treatment of the death penalty in the thought of Aquinas. This dissertation seeks to address that deficiency. I present Aquinas’s account of capital punishment as an example of determining civil punishments through the exercise of practical reason. Aquinas’s thought sanctions neither an absolute acceptance nor an absolute rejection of the death penalty; for him, this is not a question that admits of absolutes. Like other punishments, the death penalty is a determination made by human reason. Its justification depends on specific historical and cultural circumstances and on the needs of the political community, as well as on the severity of the offense. Killing a guilty person is not intrinsically evil, in Aquinas’s view, but it is nonetheless a last resort, when nothing else can be done for the good of the community. It may be that recent Church documents have avoided making use of the Thomistic teaching on the death penalty, even where this could have made their reasoning clearer, for fear that such arguments would be misunderstood, or in order to make a clearer case for forgoing the penalty. If this dissertation contributes to our understanding of what Thomas actually says about CP, it will be helpful in reconciling the thought of John Paul II with the tradition of Catholic thought on capital punishment, as well as in offering a reasonable way for thinking about punishments in general. ACKNOWLEDGMENTS I dedicate this dissertation with gratitude and affection to Mother Ann Marie, O.P. and to my parents, Arthur and Michele. I thank Father Arthur Madigan, S.J. for his careful reading of every chapter, for his encouragement and evaluation, and for his kindness, patience, and good advice. I thank Professor Jorge Garcia for his thoughtful and challenging comments, which I have only begun to address. I thank Professor Patrick Byrne for his perceptive suggestions, and Professor Thomas Hibbs for the initial idea for this dissertation, and for reading and commenting on an earlier version. Finally, I thank Sister Mary Bernard Curran, O.P. for her comments and corrections, and all the Dominican Sisters of Saint Cecilia for their unflagging love and prayers. i TABLE OF CONTENTS INTRODUCTION V A Background and Sources viii B Assumptions xii C Order of Presentation xiv CHAPTER I: SAINT THOMAS ON PUNISHMENT 1 A Punishment is Evil in a Certain Respect 2 A.1. The Problem 3 A.2. The Nature of Evil 5 A.3. Punishment and Fault 9 B Punishment is Good Simply 13 B.1. Human Acts 14 B.2. Good and Evil in Human Acts 18 B.3. The Object of an Act of Punishment 22 B.4. Levels of Order Addressed by Punishment 32 C Remote Ends of Punishment 34 C.1. Perfect Retribution: Eternal Punishment 36 C.2. Medicinal Retribution: Temporal Punishment 39 D Conclusion 45 CHAPTER II: THE ACT AND THE INSTITUTION OF CAPITAL PUNISHMENT ACCORDING TO ST. THOMAS 47 A The Act of Capital Punishment 47 A.1. Central Texts: S.T. II-II, q. 64, a. 2 and S.C.G. III. c. 146 48 A.2. Objections and Replies 55 A.3. Other Acts of Killing 66 B The Institution of Capital Punishment 73 B.1. Thomas on Human Law 73 B.2. Utility, Equity, and Custom Determine Specific Punishments 84 B.3. Determining the Death Penalty 89 C Conclusion 99 CHAPTER III: THE POLITICAL COMMON GOOD ACCORDING TO ST. THOMAS 102 ii A The Political Community 103 B The Political Community as a Whole 109 C The Common Good 124 C.1. Proper Good 127 C.2. Common Good 135 D The Political Common Good 141 D.1. Happiness and the Political Common Good 141 D.2. Love of the Political Common Good 154 E Conclusion 168 CHAPTER IV: PHILOSOPHICAL OBJECTIONS TO THE THOMISTIC ACCOUNT OF CAPITAL PUNISHMENT 173 A First Objection: Thomas is Inconsistent in Condoning CP for Heresy 175 Response to the First Objection 177 B Second Objection: Capital Punishment is Not a Useful Punishment 181 Response to the Second Objection 182 C Third Objection: CP is a Necessary Determination of Natural Law 186 Response to the Third Objection 191 D Fourth Objection: The Human Person is not a Part 198 Response to the Fourth Objection 200 E Fifth Objection: The Political Common Good is a Merely Instrumental Good 206 Response to the Fifth Objection 207 F Sixth Objection: Intentional Killing Is Always Evil 213 Response to the Sixth Objection 218 G Conclusion 225 CHAPTER V: CONCLUSION AND APPLICATION 227 A Summary 227 B Application of the Thomistic Theory of CP to a Contemporary Case 237 C The Value of the Teaching 245 APPENDIX: THEOLOGICAL OBJECTIONS TO THE THOMISTIC ACCOUNT OF CAPITAL PUNISHMENT 249 A Scriptural Objections 250 iii B Recent Church Teaching on CP 258 C First Objection: There Has Been a Development of Doctrine on CP 263 Response to the First Objection 270 D Second Objection: CP is Incompatible with the Common Good as Understood in Catholic Social Teaching 281 Response to the Second Objection 282 E Third Objection: CP Violates Human Dignity 288 Response to the Third Objection 289 F Conclusion 303 BIBLIOGRAPHY 305 iv Introduction Why turn to Thomas Aquinas for philosophical insight into the problem of capital punishment? There are reasons to doubt the value of this approach. His account contains elements repugnant to the contemporary reader. 1 In responding to an objection that the death penalty cannot be just because “to kill a man is evil in itself,” Thomas says that “although it be evil in itself to kill a man so long as he preserve his dignity, yet it may be good to kill a man who has sinned, even as it is to kill a beast.” 2 He also frequently compares the political community to a living body, such that “the whole of man is directed as to his end to the whole of the community of which he is a part.” 3 We will examine both these comparisons in what follows, to see the point that each attempts to convey. Yet we will also see that his argument does not depend on these comparisons as a conclusion on premises. Rather, he uses them as illustrations that, ironically, are supposed to clarify his point about punishment of the evildoer. They may indeed have clarified the case for his contemporary readers, but the fact remains that for us they tend not to clarify but to obscure. Further, Aquinas’s reasoning about the death penalty is informed by the time in which he lived: the penal law, the nature of the mediaeval political order, and the 1 His account also challenges some of our preconceptions about mediaeval political thought, as when Thomas says of a free people that “the consent of the whole people expressed by a custom counts far more in favor of a particular observance, that does the authority of the sovereign, who has not the power to frame laws, except as representing the people.” S.T. I-II, q. 97, a. 3, ad 3. References to the Summa Theologiae (S.T. ) are from the translation by the Fathers of the English Dominican Province (Benziger, 1948). Where the translation might lead to confusion, I provide the Latin text in parentheses or footnotes. In the few cases where I give a different translation of a word or phrase, I also give the Latin (Edizioni San Paolo, 1988). 2 S.T. II-II, q. 64, a. 2, arg. 3 and ad 3. 3 S.T. II-II, q. 65, a. 1. v particular threats and concerns of thirteenth-century political life. If the idea in looking at Thomas’s theory of capital punishment were to introduce something like mediaeval penal law into twenty-first century American political life, this would clearly be ridiculous. Moreover, it would be contrary to Thomas’s own conception of law, for he says that every change in law undermines the force of custom, which is one of the greatest forces in maintaining civil order. Finally, one might think that Thomas’s teaching on the morality of capital punishment is a matter for theology. This teaching has been a frequent point of reference for Catholic theologians and prelates up to the mid-twentieth century. 4 Yet in recent Church documents, particularly in John Paul II’s Evangelium Vitae and in the Catechism of the Catholic Church , one finds a near-total repudiation of the use of capital punishment.