As I write news is arriving of the fatal shooting of the conservative activist Charlie Kirk on the campus of Utah Valley University in Orem. This come only hours after I read of the fatal stabbing on September 6 of a retired Auburn University professor who was walking her dog in a local park in Auburn, AL, then forced into the woods and stabbed multiple times.
Also in the news this week are ongoing reports of another fatal stabbing – this one in Charlotte, NC, and of all places, in a light rail train. The murder was committed by a repeat offender (according to reports, some 14 arrests and releases) who faces federal murder charges (given that it happened in a mass transit system). The victim happened to be a 23-year-old Ukrainian refugee who came to the U.S with her mother, sister and brother to escape the war in Ukraine.
We are still reeling, of course, from the mayhem and mass shootings that occurred only two weeks ago. On the morning of August 27, in southwestern Minneapolis a gunman armed with a semi-automatic, a 12-gauge shotgun, and a pistol stormed his way into the Church of the Annunciation during a scheduled school-wide Mass that was attended by students and faculty of Annunciation Catholic School, killing two and injuring eighteen. (Perhaps we have already forgotten the attempt at mass murder, barely two years ago, at the Covenant School, a Presbyterian Church in America elementary school in a southwestern neighborhood of Nashville, TN, where a gunman, a 28-year-old transgender man and former student, killed three nineyearold children and three adults before being shot and killed by Metro Nashville Police.)
And it was barely a month ago (August 11), that three people in Austin, TX, were murdered in a Target parking lot. This occurred just days after a quadruple murder in Jackson, TN, where authorities found an abandoned baby. The suspect was charged with the murder of the child’s parents, grandmother, and uncle.
This depressing litany of murder and mayhem could go on and on. Not surprisingly, in late 2022 the Marshall Project reported that the last five years had been witness to more mass murders (four or more people) than any half-decade since the mid-1960s. Yet despite the incidence of violent crime around us, there exists in Western culture a strange reticence (unwillingness?) to acknowledge – much less debate – the character and demands of justice, properly perceived. Why is that?
Justice, classically understood, is rendering to each what is due. One need not espouse Christian faith to acknowledge this moral principle; it is basic to “civil society.” Tragically, the foundations of law – namely, its theological and moral underpinnings – are dying (if not dead) in Western culture. America’s public philosophy of choice is rooted in a militantly secular and utilitarian view of law – a development that has been underway for several generations.
Justice, however, depends on something beyond itself, if indeed it is truly “just” and therefore applicable to all in a universal sense. Justice requires a foundation of transcendent moral truth. Law, it needs emphasizing, is inherently “religious” in nature, regardless of whether it is acknowledged as such. When law loses what only a conviction of ultimacy can bestow, it degenerates into an inhumane utilitarianism with the consequence that moral-cultural breakdown ensues. Totalitarian societies, which are on the increase, are the end result of this process.
It is supremely difficult for contemporary culture to acknowledge the reality of evil and the fact that it is part of the human condition that people do evil things to fellow human beings. It is hoped, rather, that preemptive strategies facilitated by brain research, genetic testing or psychosociopharmacology might alter in the some way the tendency toward deviant behavior. These attempts, alas, only render us less human and in the end foster greater social excuse-making. The question that confronts “civil society,” however, is the moral question. What will we tolerate? And will we tolerate those who murder in cold blood? Can “civil society” as we know it remain “civil” and “just” if we cannot affirm the sanctity of human life?
In the case of murder, that is, the willful taking of innocent human life, we are confronted with values of the highest order. Capital punishment is one of those recurring issues that simply will not go away. Curiously, regarding the death penalty there is no “sacred-versus-secular” divide; most people in Western societies, whether they are religious or not, are abolitionist in sentiment, and overwhelmingly so.
Traditionally, in the wider Western cultural tradition, punishment has been understood to be retributive, corrective or rehabilitative, and deterrent in character. Fundamentally, punishment is not just if it is void of the retributive element. After all, as a society we cannot inflict punishment on a person if he or she does not deserve it. Ask any parent. Just punishment must always be proportionate to the offense, particularly in the case of murder, a capital crime.1 In the present cultural climate, we are unable to answer the question of what is truly just in a “worst case” scenario (say, for a cold-blooded mass-murderer and rapist). In the case of premeditated murder, however, authentic justice does not impose a “life sentence,” or multiple “life sentences.” Such conceptions are simply incoherent, not based on any moral principle, and hence unjust.
Having done criminal justice research in Washington, DC, prior to the university classroom, I write as one who has been wrestling with issues of justice much of my life. And even when the focus of that research over the years has shifted from domestic- to foreign-policy issues, I retain the conviction that the character of justice remains the same, whether applied to domestic or foreign policy. Inasmuch as justice must be the same for Kansans, Californians, and Coloradans, it must also be the same for Kenyans, Canadians, and Kazakhstanis. For this reason, we may glean important insights into the nature of justice by examining the primary moral criteria that comprise the “just war” tradition as classically understood in the wider Western cultural heritage.
The tradition of “just war” (more accurately, “justified war”) is anchored in the primary moral conditions of just cause, legitimate authority, right intention, discrimination, and proportionality. Together they (a) justify whether or not to intervene coercively (ius ad bellum) and (b) justify the means by which coercive intervention is executed (ius in bello). At bottom, just cause, right intention, and proportionality mirror the very heart of justice.
Just cause informs the need for coercive intervention based on fundamental moral distinctions – between innocence and guilt, between the criminal and the punitive act, between retribution and revenge, between “crimes against humanity” and humanitarian protection. For a response – for example, punishing evil – to be just, it must accord with human nature and moral accountability (doing good and resisting evil) and be proportionate to the injustice itself. Right intention governs the motivation of coercive intervention (or punishment) in the case of responding to evil. Coercive, even lethal, force can be “rightly” motivated for both positive and negative reasons; that is, it expresses charity, which desires the best for individuals as well as the common good (or peace) of societies, while it “dignifies” human beings by holding them accountable for their actions (what all parents intuit). Proportionality well expresses the very essence of justice, for it requires that we assess human behavior – in this case, criminal behavior – on the basis of merit and desert. We neither assign draconian penalties to petty misbehaviors nor slap the wrists of murderers and rapists. Punishment must always be proportionate to the crime committed.
Contemporary culture is awash in excuses for not punishing proportionately. As it concerns the death penalty, such rationales are shared by secular and religious people alike. They include but are not limited to: (1) the fallibility of the criminal justice system, (2) the possibility of executing innocent people, (3) the purportedly capricious manner by which individuals are selected for execution, (4) purported racism, (5) a purported lack of statistical verification of deterrence, (6) the insufficiency of revenge as a motive, (7) a purported Eighth Amendment immunity, (8) Jesus’ supposed abrogation of the lex talionis in the “Sermon on the Mount,” and (9) the annulment of the Old Testament Mosaic code.
The rationale for the Church’s historic affirmation of the death penalty – and the historic Christian tradition shows a clear acknowledgement thereof – is lodged in Scripture’s teaching on the sanctity and dignity of human life and in the natural law, as mirrored inter alia in Genesis 9:6: “Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man.” This prohibition informs the Sixth Commandment: “You shall not murder” (Exo. 20:13). Note what undergirds these two divine commands: the prohibition is not in spite of human dignity but because of it. Because of the imago Dei, murder is the equivalent of effacing God himself, and thus worthy of losing one’s life. What’s more, the “philosophical” rationale for this is not mere revenge; it is rather to guard and protect innocent life from unjust invasions.
In the public debate over the death penalty, we are dealing with values of the highest order, namely, respect for the sacredness and protection of human life. This expresses what Augustine called the tranquillitas ordinis in society, wherein people might flourish by means of a justly-ordered peace. At bottom, what is intrinsically wrong is not the killing of a human person but the intentional killing of an innocent person, as the “cities of refuge” in the Old Testament well demonstrate (Numbers 35, Deuteronomy 19, and Joshua 20).
Does capital punishment in the case of convicted murder constitute an “uncivilized” societal response, as abolitionists maintain? The answer depends fundamentally on how we as a society understand the morality of crime and punishment. A society unwilling to impose the death penalty on those who murder in cold blood is a society that has abandoned its responsibility to uphold the sanctity of human life. In the end, civilized culture will not tolerate murder; an uncivilized one, however, will.2
- A clear and concise argument for the centrality of proportionality in punishment can be found in Edward Feser, “In Defense of Capital Punishment,” Public Discourse (September 29, 2011), accessible at www.thepublicdiscourse.com/2011/09/4033/. ↩︎
- Elsewhere I examine the ethics of capital punishment variously; see, for example, “Outrageous Atrocity or Moral Imperative? The Ethics of Capital Punishment,” Studies in Christian Ethics 6, no. 2 (1993) 1-14; “Lethal Rejection,” Touchstone (Sept./Oct. 2016): 30-36; and “Capital Crimes and Capital Punishment,” Public Discourse (March 14, 2023), accessible at www.thepublicdiscourse.com/2023/03/88117/. ↩︎
