Antonin Scalia’s flawed moral logic

I’ve been interested since my trip to the US about the current arguments on the relationship between church and state there. Then I came across this article by Antonin Scalia (a Catholic Supreme Court judge) on the death penalty: God’s justice and ours.

My first response as a Christian was to think ‘with friends like this who needs enemies’? When a prominent Christian writes, the following, it’s hard not to start agreeing with the atheists that religion is intrinsically wicked:

Indeed it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe and has least support in the church-going United States…Besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved.

(Scalia’s views, of course, aren’t shared even by all Catholics: as he admits, the papacy is now against the death penalty. There are also other articles in First Things which take a different Catholic line: see e.g. http://www.firstthings.com/ftissues/ft0508/articles/bottum.html).

My second response is that Scalia seems to have contradictory views about the enduring values of the Constitution and the Bible. He says: ‘the Constitution that I interpret and apply is not living but dead – or as I prefer to put it, enduring’. He thinks that the Constitution must be interpreted as it was in the eighteenth century. But he then goes on to justify capital punishment by quoting St Paul’s letter to the Romans 13: 1-5:

Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.

Now the one thing you can be sure about in that passage is that Paul is not talking about Christians inflicting the death penalty. The concept of Christian temporal rulers or a Christian state was utterly alien to Paul (as to everyone pre-Constantine); it is pagan rulers who are talked about there. And there is no evidence that Paul wanted these kind of disciplinary powers for the one Christian ‘power’/‘authority’ there was at the time: the church. The only sanction/punishment he talks about is exclusion from the community of believers: nowhere in the New Testament is it said that the church should have the power to wield the sword, but is constrained at the moment since it is part of the Roman Empire. You can argue by analogy for Christian support of imprisonment from the New Testament (as an extension of social exclusion for wrongdoers), but I don’t see how you can argue from it (as opposed to the Old Testament), for capital punishment.

(Scalia is right, of course, that church views changed fairly early on. Augustine, for example, accepted the sinlessness of inflicting the death penalty: I’m not sure if earlier Fathers did. But for a strict constitutionalist such a later intepretation of Christianity is invalid. Incidentally, how on earth can a strict constitutionalist be a Catholic (rather than a Protestant)? The Catholic Church has clearly not adhered to such Biblical doctrines as episcopal marriage, for example).

My final thought is that even for a strict Catholic Scalia’s logical argument for the Christian acceptance of the death penalty is wrong. He says:

for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cranmer asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to Him.” For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!

Let’s look a little harder at the logic of the various cases. There is a distinction between believers and non-believers (I’m adopting Scalia’s terminology, because he might not include all Christians in this) in what they think happens after death. Believers, presumably, know that there is a Heaven (to which believers go when they die and which is a place of eternal bliss) and a Hell (to which non-believers go when they die and which is a place of eternal torment). Non-believers, however, believe that after death there is non-existence.

How does this affect a Christian’s response to a murderer? A non-believer who has murdered someone has intended to send them to non-existence. If the non-believer is executed, however, he will go to Hell, which is worse than non-existence. By lex talionis (the Old Testament precept that an eye for an eye is the maximum penalty that can be inflicted), the Christian state or judge cannot inflict on him a worse injury than he inflicted on another. It can, however, imprison him for life. That would give him the fullest opportunity to repent, convert and thus ensure he went to Heaven. (By contrast, any imposing of the death penalty, however slowly it may come, unnecessarily increases the risk that he will die without conversion and thus his soul be lost).

What about the believer who murders someone? (Even believers are sinners and so may fall into sins). If he knew his victim was a believer he intended to send him to Heaven. If he knew his victim was an unbeliever, he intended to send him to Hell, or was reckless about sending him to Hell. In this case, the Christian state can justify using the death penalty. Once the believer has had a short period of time to put himself right with God (by confession, acknowledgement of God or the like), he is again redeemed and justified. [Scalia’s comment that murder cause one to lose one’s soul is ridiculous – the Christian message is that any sinner can be redeemed]. He will therefore go to Heaven when he dies and so by lex talionis the death penalty is not an excessive punishment against him. (He could of course choose not to put himself right with God before he died, but that would be his own free will decision and he would then voluntarily be accepting Hell).

By this argument the Christian State (or the Christian judge) is justified only in inflicting the death penalty on believers, not on unbelievers. (The practical objection to this, of course, is that all murderers would promptly claim that they are non-believers to avoid execution. However, almost by definition, any believer who renounces his eternal hopes for such temporal reasons cannot really have been a believer after all.) QED.

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