Life and Choice

Not that long ago - indeed, it is a matter of mere months - there was a consensus at all levels of Canadian government, Dominion and provincial, regardless of which party actually held the reins of power, that choice was more important than life. Today, it is the consensus of all levels of the Canadian government that life is more important than choice.

In neither case was the consensus one that was arrived at legitimately through informed and open discussion. In both cases this writer did not merely dissent from the consensus but condemned it as being monstrous and evil.

So what is going on here? Has some diabolical mad scientist from an extra-terrestrial world targeted our planet with a mind reversal beam powered by interstellar radiation?

Not exactly.

What is meant by “life” and by “choice” in the one consensus was radically different from what is meant by these terms in the other. In the first consensus, the choices that were valued over life were very specific choices. The choice of an expecting mother to terminate her pregnancy and kill her unborn child was one such choice. The choice of somebody – usually a person with an irreversible condition that causes intense pain and suffering – to end his own life with medical assistance was the other. In short, the choices were abortion and euthanasia. The lives that were considered less important than these choices in the previous consensus were specific lives – the lives of the unborn children of the women who chose abortion and the lives of those who chose euthanasia. That the termination of these lives would ensue as the outcome of these choices was certain. Furthermore, these deaths were the deliberate and intentional end of these choices for which reason these choices cannot be made without incurring moral culpability.

The reverse of all of this is true about the “life” and “choice” of the second consensus. Although certain demographics are more susceptible than others to die from the severe pneumonia that the Wuhan Flu aka COVID-19 produces in a minority of those who contract it, the disease does not target specific individuals, nor is death certain in any particular case. With the exception of acts like coughing and spitting in someone’s face, which were already considered to be unacceptable behaviour long before the pandemic, the choices that have been curtailed by our fascist public health officials do not deliberately, intentionally, and willfully spread the virus, much less cause the deaths of the small fraction of those who eventually die from it. Barring the discovery of any hard evidence for the conspiracy theories that claim this virus was created in a laboratory there is no moral culpability here.

At the end of February, only a couple of weeks before the World Health Organization declared a pandemic, Justin Trudeau’s Liberals tabled a bill in the Dominion Parliament – Bill C-7 – which, if passed, would remove most remaining legal roadblocks to euthanasia. It would also take a huge leap down that slippery slope from physician-assisted-suicide to physician-with-power-of-life-and-death that opponents of euthanasia such as this writer have been warning about all along. It allows for the euthanizing of those who have lost their ability to consent to the procedure provided that they have indicated their willingness at some point in the past.

The segment of the population that is likely to be euthanized overlaps to a very large extent the demographic that is most susceptible to die from pneumonia from the coronavirus. What kind of warped logic reasons that we must indefinitely cancel the most basic freedoms of everyone in society in order to protect people from dying from the Wuhan Flu in order that their physician might terminate their life deliberately, with or without their consent?

Note also that while each province in the Dominion has ordered its hospitals to cancel or post-pone most surgeries and procedures that do not involve saving lives, abortions remain accessible during the lockdown.

Now consider the kind of choices that the public health bureaucrats have taken away from us. The choice to go for a walk or jog in the park. The choice to get together with friends and family to celebrate birthdays, anniversaries, weddings and the like. The choice to meet up with somebody for coffee. The choice to shake somebody’s hand, clap him on the back in congratulations, or cheer him up with a hug. The choice to pay our respects and mourn together for loved ones we have lost. The choice to assemble together with others of our faith and worship our God as He commands us. The choice to go outside and get some fresh air. The choice to go to the library and take out a few books. The choice to go to a gym and get some needed exercise. Unlike abortion, these and the thousand other similar choices that are now forbidden us, do no intentional harm to anybody.

It is choices like these that make up what we, until quite recently, used to call “living our lives.”

What is the point of protecting our lives if we are not allowed to live them?
The kind of choices that the Trudeau Liberals – and all the so-called “conservatives” in the provincial governments – believe should be protected at the expense of human life, do not deserve the protection of law. The kind of choices that our health authorities, Dominion and provincial, have taken away from us in order to protect our lives from the Wuhan Flu, are the choices that make up everyday life and which constitute our basic freedoms. Health authorities should not be able, under any circumstances, much less a media-hyped, flu-type virus, with a fancy name, to take these freedoms and choices away from us. Only Communists, Nazis, and others of that general type would ever wish to do so.

George Grant in an essay entitled “The Triumph of the Will” written in response to the decision by the Supreme Court of Canada, with the new powers given it by the Charter of Rights and Freedoms, to strike down our laws against abortion in R v Morgentaler, quoted Huey Long’s famous remark about how when fascism comes to America it will be in the name of democracy. Our Supreme Court, like that of the Americans in Roe v Wade the previous decade, Grant said “used the language of North American liberalism to say yes to the very core of fascist thought - the triumph of the will.”

I wonder what Grant would have had to say could he have seen the way in which the same people who show a disregard for human life in the name of choice, when that choice is abortion, have turned around and criminalized the most everyday of human choices in the name of life. Since it is happening all over the world, and Grant liked to remind us of the ancients’ warning a universal, homogeneous, state would be one of tyranny, I doubt that it would surprise him much.

Grace and Sacrament

In the Reformation of the sixteenth century, one of the key theological issues over which the Reformers and the papal hierarchy in Rome contended, was the doctrine of justification, God’s declaration of a man to be righteous in His eyes. The Roman Catholic Church and the Reformers agreed that justification was by grace on God’s part. Where they disagreed was over how man receives the grace of God. The Reformers insisted that man received the grace of God and was justified thereby through faith alone. At the Council of Trent, the Roman Catholic Church declared this view to be anathema and said that justification was by faith and works of love.

I believe that the Roman Catholic Church made a terrible mistake in pronouncing this anathema at Trent and that in doing so they failed to uphold the doctrine of the Apostles, as recorded in the New Testament, explained by the Church Fathers, and traditionally held by the Church. In condemning the doctrine of justification by faith alone they pointed out that the New Testament does not qualify the word faith with the word alone in speaking of justification except to express disagreement in James 2:24. As true as this observation is it avoids the fact that when the Reformers spoke of “faith alone”, alone was shorthand for “and not by works.” It excludes works as a means along with faith of receiving grace. This is precisely what St. Paul the Apostle taught. It is the major theme of his epistles to the Romans and Galatians and is mentioned in one way or another in most of his other epistles. In Romans 4, where St. Paul answers James by asserting that the type of justification he wrote about, i.e., by works, was something to boast about and therefore not “before God” (v. 2) he declares that by faith God justifies the person who “worketh not” (v. 5), an extremely strong wording of this doctrine that approaches the border of antinomianism. The Roman Catholic argument that St. Paul was talking about “works of the law” rather than “works of love” defeats the very distinction it tries to make, because the difference between works of the law and works of love is precisely that the former are done with the motivation of earning justification from God for oneself whereas the latter are done with the motivation of pleasing the God one loves rather than obtaining something for oneself. Such works are impossible if they are also necessary alongside faith for receiving the grace of justification.

The error of Trent is one of confusing ends with means or, to use an analogy that was once common, putting the cart before the horse. Means are the methods and tools we utilize to achieve ends which in turn are the goals, goods, and purposes we seek to accomplish. Works are not the means whereby we either achieve or receive the end of our justification and salvation. Rather, salvation which includes justification, is the means whereby God takes us from our fallen, broken condition, and makes us into a new creation which responds to Him with works of love. To repeat, works are not our means for achieving the end of our salvation, rather our works are the end for which salvation is God’s means. St. Paul could not have stated this more clearly than he did in Ephesians 2:8-10.

This understanding is fundamental to the very idea of salvation by grace. For to say that salvation is by grace is to say that salvation is a gift, something that God bestows upon us freely rather than in exchange for something. Something that is a freely given gift can only be received, rather than worked for, because if it is worked for it is a reward or wage rather than a gift, a point St. Paul spells out for us in Romans 4. The understanding that salvation is the means and our works the ends is also vital to the realization that salvation entails more than a divine “fire insurance” policy, that it is a divine rescue mission in which we are lifted out of our fallen estate in which the image of God is broken and marred by sin and brought into a place where restored, we can once again reflect His goodness and grace, as we were created to do.

Rome was clearly in serious error on this point, although it needs to be said that their error was well-intentioned. They wished to guard against the danger of license, i.e., the idea that because one is saved by grace one can therefore feel free to sin without consequence. As good as that intention was it is no solution to the error rebuked by St. Paul in Romans 6 to fall into the error that the entire epistle argues against.

If Rome, to prevent against license, erred in adding works to faith as the means of receiving grace and salvation when in fact salvation is the means to the end of works, a tendency developed on the Protestant side of the Reformation divide to err by limiting the channels by which God’s grace comes to us that we might receive it by faith. I do not mean that they erred in saying that Jesus Christ is the only Saviour and that salvation is only found in Him. On this truth, Rome and the Reformers were in agreement. Jesus is Himself our salvation, and everything from His Incarnation through His Miraculous Conception by the Holy Ghost of the Virgin Mary, through His Life and Teachings, Passion, Death, Burial, Descent into Hell, and Resurrection to His Ascension back into Heaven to sit at the right hand of the Father, is God’s loving, gracious, and merciful, gift of salvation to us. The channels of grace to which I refer are the means by which God’s gift to us in Jesus is brought to us that we may respond in faith and receive it..

I began my Christian walk with an evangelical conversion experience when I was fifteen. I began to attend and was baptized in a church in which the Word, written and spoken, was stressed as the channel by which God’s salvation in Christ comes to us that we might receive it by faith. This was how I had been brought to my conversion, having read the Gospel message about how God had given us His Son to suffer and die for our sins and then raised Him from the dead in Christian literature and heard it preached on Christian radio. Furthermore, this teaching is very much in accordance with St. Paul’s statement that “faith cometh by hearing, and hearing by the Word of God” (Rom. 10:17).

St. Paul makes it clear in the context in which he says this that the role of the Word is essential. The Apostle does not say, however, that there are no other channels that supplement the spoken or written Word. That there were, in fact, other such channels was suggested to me early in my Christian walk by a story in one of L. M. Montgomery’s Chronicles of Avonlea anthologies, about a fallen woman on her deathbed who was unable to grasp the concept of God as a loving Father, freely forgiving her of her sins in Christ, no matter how the minister tried to explain it to her, until his nephew arrived and expressed the message in a language she could understand, that of the violin. A year or so after reading that story I read Johnny Cash’s autobiography Man in Black, in which he testified to more or less the same thing, that the Gospel message which spoke to his brother through preaching, had to come to him through the vessel of Gospel music. Perhaps the prominence of music in the services of virtually all Christian worship traditions also testifies to this.

The idea that the spoken or written Word is the sole means whereby Christ is brought to us that we might believe in Him is in conflict with St. John’s declaration in the first chapter of his Gospel that “the Word was made flesh and dwelt among us” (Jn. 1:14). The Word of which the Apostle speaks is Jesus Himself, the Living Word of God. If the Living Word of God had to put on flesh and live amongst men as a Man in order to reveal His Father to us is it reasonable to expect the written Word, the testimony of His disciples to Who He was and what He did, to bring Him to us without also being “made flesh” in a sense? For this is precisely what the church has traditionally said its mysteries or sacraments do.

St. Augustine of Hippo said that a sacrament is formed by the combination of the Word with a physical element so that the physical element, the water of baptism and the bread and wine of Holy Communion becomes a vessel in which the Word and the grace it contains is conveyed. The sacraments are administered, of course, by the church which was established by Christ through His Apostles and said by St. Paul to be the body of Christ. In his first epistle to the Corinthians St. Paul elaborates on that concept, explaining that the church is an organic collective whole, the members of which, with their distinct gifts and offices, are like unto the organs in the body with Christ Himself as the head. Earlier in the same epistle, he says “Know ye not that ye are the temple of God, and that the Spirit of God dwelleth in you?” (1 Cor. 3:16) Note that the King James Version just quoted uses distinct forms for the singular and plural second person pronouns as does the original Greek, and that the plural is used here. As temple of God is in the singular, the second person plural is a collective plural and so the verse expresses, with a different metaphor, the same basic concept that the church is a collective whole, collectively indwelt by the Spirit of God sent upon the church at Pentecost. The clear implication of all of this is that the church was established as a continuation of what began in the Incarnation. In Jesus Christ, the Living Word of God was made flesh and after He ascended back into heaven, He sent His Spirit to indwell the church that it might continue His ministry as His physical presence here on earth, and in the mysteries or sacraments of the church the written Word of God is likewise “made flesh” so as to be brought to the believer in a tangible way, that supplements and complements the mere reading, speaking and preaching of the Word.

The versions of Protestantism that rejected this understanding – and not all did, of course – and made the reading and preaching of the Word the sole channel by which God’s gift of grace to us in Christ is to be brought to us to be believed, had good intentions in doing so, just as Rome had good intentions in declaring its anathema on sola fide. These Protestants wished to guard against the danger of misplaced faith, of putting one’s trust in the church and its sacraments rather than in God and the Saviour He has given us in His love, mercy, and grace. This is a real danger and when a person falls into this error, making the church and its sacraments into steps one must climb to approach Christ, they can actually become a wall that keeps him from Christ. This danger must be warned against like that of license which Rome sought to avoid, but just as it is a mistake to stick the cart of works before the horse of salvation, confusing means with ends, so it is a mistake to throw the baby of Incarnational and sacramental theology, out with the bathwater.

If Rome, by declaring anathema the Pauline doctrine that grace is received by faith and not by works and that works are the end to which salvation is the means and not the other way around, brought its own curse down upon its own head, advanced Protestantism impoverished itself, by making preaching and reading the Word the sole channel of grace. For grace is not something we need once and receive once but something in which we are in constant need of. Faith is not, as much of North American evangelicalism unfortunately seems to think, a single act or decision, but a heartfelt response of confidence and trust in God and His grace as given to us in our Lord and Saviour Jesus Christ that is ongoing and continual. Faith is formed in us by the very grace it receives, and since faith can weaken and falter, it is in constant need of being replenished and strengthened. This, of course, means that the believer needs to continually read and hear the Word, which is why the liturgy of the Word is an important part of the traditional worship of the church but how much more is the believer’s faith strengthened and replenished when the ministry of the Word is supplemented and complemented by the sacraments in which the church “makes the Word” flesh?

All of this has been on my mind recently as I prepared for and received confirmation by our bishop, in the orthodox Anglican church I have been attending for several years now. This was not a repudiation for me, of the church in which I began my Christian walk for the ministry of which I will always be grateful, but an embracing of the multiple ways in which God’s grace in Christ has been made available to the believer in the wider tradition of Christianity.

Confirmation, the ancient rite in which the bishop lays his hands on the believer’s head and prays over him for strengthening by the Holy Spirit as the believer reaffirms his baptismal vows of repentance and faith, is not considered by the Anglican Church to be a sacrament in the same sense as baptism and the Lord’s Supper. The Anglican Church differs from the Greek and Latin Churches in this for it, rightly I believe, reserves the term sacrament in its strictest sense for the rites actually ordained by Christ Himself. It recognizes a sacramental quality to the rite, however, and if as we have been discussing, the purpose of a sacrament is to make the written Word flesh so that the believer can receive it in ways other than by hearing and reading, then all aspects of the life of the church have a sacramental quality in one way or another to them. The calendar of the Christian year makes the Gospel story flesh, by re-enacting and celebrating Christ’s life and ministry, from the anticipation of His coming in Advent to His reign as Christ the King. The Gospel is made flesh in the images and decorations of the church, and, as L. M. Montgomery’s fictional story and Johnny Cash’s actual testimony referred to earlier tell us, music can tell the story in a language which can reach those who could not otherwise understand it.

This points to the truth upon which I will conclude these reflections. Just as salvation, in its fullest sense, is much more than “fire insurance” but is the rescuing of people from the brokenness of sin and restoring them to a harmonious relationship with God out of which works of Christian love grow as fruit so grace, in its fullest sense, embraces more than the giving of salvation but every other gift that God gives us as well, from the gifts of what the Calvinist divines call “Common Grace”, such as the rain which Christ said His Father sends upon righteous and wicked alike, to the superabundant blessings of God for the believer (Rom. 8:32). “The heavens declare the glory of God”, the Psalmist says and according to St. Paul the invisible things of God have been clearly seen from creation, “being understood by the things that are made” (Rom. 1:20). There is a very real sense in which all of the world and life itself is a sacrament, making flesh the Word of God, and conveying the grace therein to all who will receive it by faith.

What About the Death Penalty?

When we are first introduced to the character of Sir John Falstaff, Shakespeare’s corpulent, cowardly, and corrupt comic relief of a knight, in Act I, Scene II of King Henry IV, Part 1, he and Prince Hal are trading jests and insults with each other in the prince’s London apartments. In the midst of this light-hearted banter, Falstaff asks the future King Henry V, a serious question.

But, I prithee, sweet wag, shall there be gallows standing in England when thou art king?

Before allowing the prince to answer he goes on to advise the heir apparent:

Do not thou, when thou art king, hang a thief.

This advice is entirely self-serving, of course. By this point in the scene we already know Falstaff to be one to “take purses” by the “moon and seven stars” and before the scene ends, he will have made arrangements to commit a robbery at Gadshill. The prince , in response to the advice says:

No; thou shalt.

Falstaff takes this to mean that he will be appointed a judge, but the prince quickly corrects him:

Thou judgest false already: I mean, thou shalt have
the hanging of the thieves and so become a rare hangman.

Upon hearing this, the rotund rogue immediately begins to re-evaluate his position on capital punishment.

There are strong arguments both for and against the death penalty and people who have strong opinions on both sides of the debate, hopefully for nobler reasons than Falstaff. I, for one, have held different views on the matter at different times in my life, and am of mixed opinion on it now.

When I was a youth, before I became a believing and practicing Christian, I thought that the anti-death penalty side had the stronger argument. What if the wrong person is convicted and we put an innocent man to death? This, I was convinced, trumped all other arguments.

I still think that this is a strong argument. It was largely because of the wrongful conviction argument that Great Britain abolished the death penalty in 1969, after Sir Ludovic Kennedy published a number of books questioning the guilt of several people who had been convicted in highly publicized cases. The argument is derived, in part, from an ancient ethical principle found in the teachings of both Socrates and Jesus Christ. Socrates, in Plato’s Gorgias, argues that it is better to suffer an injustice than to commit one. (1) Jesus does not word it this way, but the same basic concept is there in His teachings when He taught His disciples not to seek revenge or to return evil for evil, but to love their enemies, forgive those who sin against them, and to turn the other cheek. If you suffer an injustice, i.e., are wronged by someone else, you may be harmed physically. If you commit an injustice, i.e., wrong someone else, you will , in addition to harming him, harm your own soul. This sound and ancient ethical concept is an essential component of the “wrongful conviction” argument against the death penalty.

The Socratic/Christian ethic, however, does not in and of itself require an anti-death penalty position. When an argument is made for or against a proposition, it can do one of four things. It can prove or disprove the proposition, or it can support or oppose the proposition without proving or disproving it. What makes the difference is the relationship between the argument and the proposition. An argument that proves or disproves a proposition –assuming, of course, that the statements in the argument are true themselves – is related to the proposition in such a way that if the argument is true, the proposition must of necessity be true or, if the argument is negative proof, false. An argument supports a proposition without proving it when it is related to the proposition in such a way that if true the proposition is also likely to be true. Similarly, an argument opposes a proposition without disproving it when the argument, if true, renders the proposition to be unlikely.

The Socratic/Christian idea that it is better to suffer an injustice than to commit one may make the proposition “we should not have the death penalty” plausible or even likely. Does it make it necessary?

The answer is clearly no. All that necessarily follows from it is the rather basic idea that we should not unjustly impose the death penalty upon someone.

To make the proposition “we should not have the death penalty” necessary, we would have to either a) demonstrate that the death penalty is intrinsically unjust, or b) demonstrate that our having the death penalty would make it inevitable that it would be used unjustly, i.e., against innocent people or people whose crimes did not warrant so high a punishment.

Can we demonstrate that the death penalty is intrinsically unjust?

No, we cannot, for the simple reason that we can prove the exact opposite, that in certain cases the death penalty is the very definition of justice.

Think about it. Let’s say that Joe Jones comes to hate his neighbor Will Wilson. He decides that the world would be better off if Wilson were removed from it and begins to plot his murder. Then one night, he carries out his plan in cold blood, and robs Wilson of his life. He is caught and arrested, brought to trial, and convicted for his crime. What would be a just sentence for such a crime?

The correct answer is that as he robbed a man of his life justice demands that he pay for his crime with his own life.

There are some who would dispute that answer. Their argument can be worded a number of different ways but they are all variations of the idea that “two wrongs don’t make a right.” It is true that two wrongs don’t make a right, but there is a simple reason why this cannot be used as an argument against the justice of the death penalty. It would be a circular argument for it would use that which it is trying to prove – that the death penalty is wrong – as a proof.

One way to try and get around that is to argue that it is always wrong to kill people, under any and all circumstances. This argument has the merit of consistency but it would seem to be made for a different world than the one we live in. If someone attacks you, with the intention of killing you, and the only way to prevent him from doing so is to kill him, is it wrong for you to kill him?

You could, potentially, answer yes on the basis of the concept referred to earlier that it is better to suffer than to commit an injustice. What if, however, it is not your life but the lives of others the attacker is threatening? What if the others who are threatened are people to whom you owe a particular duty of protection – your wife and children, for example?

There are sins of omission as well as sins of commission, and they consist of the failure to do that which one ought to do. It may seem high and noble to take the position that one should never take a life under any circumstances, but if you have the ability to save the lives of others who are dependent upon you by taking the life of someone who is attacking them, then surely it is a sin of omission not to do so. This means, that in these circumstances, it is right and not wrong, to take a life.

Now, showing that it is right in one specific set of circumstances to take a life, does not prove that it is right in another different set of circumstances. Showing that if it is necessary to take the life of an attacker to protect others it is also right to do so does not prove that capital punishment is right. What it does show is that killing is not wrong in all circumstances. If killing is not wrong in all circumstances then the universal, intrinsic, wrongness of killing cannot be used to argue that the death penalty is unjust because it is punishing one wrong with another of the same kind.

Sometimes the objection is made that taking the life of a murderer does not restore the life of his victim. This is a strong argument for those who think of justice primarily or solely in terms of the model of restoration. The flaw in this argument, however, becomes apparent when we take it to its logical conclusion. Is there any kind of penalty for murder that will restore the life of the murder victim? Of course not. Does that mean that murder should go unpunished? Perish the thought!

What this shows us is that justice must involve more than just restoration. The restoration model of justice may be sufficient for crimes involving the theft, damage, or destruction of property but it is completely inadequate for dealing with murder cases.

Justice has been an important subject of philosophical discussion since the days of Socrates and will likely continue to be so until the end of time. Whether we are talking about the way we treat other people, the distribution of common resources or goods, the settling of disputes or the administration of legal justice, the basic idea of justice is that of giving people that which they deserve. People, as members of a society, owe that society obedience to its laws. When someone is accused of breaking the law, it is the job of a judge to hear the accusation and the defense of the accused, in some cases to determine whether the accused is guilty (2), and to give the accused what he deserves – acquittal if innocent, a just sentence if guilty. The standard by which the judge determines what a just sentence is for a particular crime is the law itself.

In civilized countries we recognize that the law itself can be either just or unjust. A law can be judged just or unjust in one of two ways. It can be just or unjust in what it allows or forbids. Or, if it is just in what it allows or forbids, the penalty it prescribes for a particular crime can be just or unjust. It is only the second of these which is pertinent to this discussion.

Is a law that prescribes the death penalty for an offense just or unjust?

If justice means to give to someone what he deserves then clearly the answer to this question depends upon the nature of the offense. If the law prescribes the death penalty for a minor traffic infraction then it is an unjust law. If the law prescribes the death penalty for premeditated murder, on the other hand, then it is difficult to argue that the prescribed penalty is not deserved.

Indeed, by an ancient principle of justice that pops up throughout history in the legal codes of the most civilized societies, the death penalty is exactly what a murderer deserves. That principle is that the punishment ought to fit the crime. This principle has a number of implications. One implication is that the criminal should be forced to pay restitution to his victim when possible. If a man steals, damages, or destroys another person’s property, then he should be forced to return, repair, or replace that property. This is only possible for property crimes in which the injury done to the victim can be undone by restitution. There are other cases in which this is impossible. If a man rapes a woman, he cannot undo the harm he has done her. If a man murders another man he cannot bring him back to life. In these cases there is no restitution that can be made. For crimes like these justice must take the form of retribution. Another implication, of the principle that the punishment ought to fit the crime, is that the punishment a crime deserves is determined by the nature of the injury the victim of the crime suffered. If a man commits murder then the penalty he deserves is the loss of his own life.

If the death penalty is just for murder then it cannot be intrinsically unjust. Therefore, the only remaining argument that can necessitate the position “we should not have the death penalty” is the argument that if we have the death penalty, it will inevitably be used against innocent people. This might seem to be a very easy argument to make. Human beings are fallen, frail, and fallible. To argue from general fallibility for the inevitability of a particular error is not valid reasoning however (3). Furthermore, if it were a valid argument, it would prove too much. For if human error means that the death penalty will inevitably be used against innocent people, it must also mean that any alternative punishment will inevitably be used against innocent people. If this argument is valid against the death penalty, it must therefore be valid against all other penalties as well.

The wrongful conviction argument is therefore, not the infallible argument against the death penalty that I believed it to be at one time. My evaluation of the relative merits of the arguments for and against the death penalty changed when I realized that the arguments used against the death penalty can be used against the very idea of law and order itself. When I realized this, I realized that the death penalty was essential to criminal justice and the rule of law.

I have since encountered other arguments against the death penalty. These are not as strong as the wrongful conviction argument but I will address two of the more common ones. The first is that the death penalty is contrary to the Bible and to the teachings of Jesus Christ. The second is that the death penalty is inconsistent with the prolife position. Both arguments are addressed to specific groups of people – Christians and opponents of abortion – and assume the worldview held by those groups as part of the argument.

The argument that the death penalty is contrary to the Bible and the teachings of Jesus Christ is just plain wrong. Those who argue this most often point to the sixth commandment (4), the Sermon on the Mount and the story of the woman taken in adultery as evidence.

It is difficult to understand how anyone could honestly believe that the sixth commandment – “thou shalt not kill” – forbids the death penalty. This commandment and the other nine are part of a larger legal code. They are first recorded in the Bible in the twentieth chapter of the Book of Exodus. In the next chapter, the death penalty is prescribed for such crimes as murder, assaulting and/or cursing one’s father and mother, and kidnapping.

Now that same chapter, also includes a version of the ancient lex talionis, the standard of justice in which a man receives as punishment the injury he has inflicted upon another. By this standard, murder warrants the death penalty, and “life for life” is in fact the first thing mentioned in the version which appears in Exodus. Jesus is often said to have disagreed with the lex talionis on the basis of His words in the Sermon on the Mount, particularly those recorded in St. Matthew’s Gospel, chapter five, verses 38-42. In these verses He says:

Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. And if any man will sue thee at the law, and take away thy coat, let him have thy cloak also. And whosoever shall compel thee to go a mile, go with him twain. Give to him that asketh thee, and from him that would borrow of thee turn not thou away.

Jesus, however, warned those who heard Him give this Sermon, against interpreting His words as disagreement with the Law of Moses. Verses 17-18 of the same chapter record Him as saying:

Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil. For verily I say unto you, Till heaven and earth pass, one jot or one tittle shall in no wise pass from the law, till all be fulfilled.

This warning comes just before the part of the Sermon in which Jesus six times introduces a quotation from the Law with “Ye have heard it said” and His own instructions with “But I say unto you”. In some cases, such as the commandments against murder and adultery, there is no apparent contradiction between Jesus’ own instructions and the Law. His instructions take the commandments further and apply them to a person’s inner thoughts and desires as well as to his outward actions. In the case of “an eye for an eye”, however, Jesus’ instructions appear to tell us to do the exact opposite of what the quoted commandment tells us to do. In this context, Jesus’ warning in verses 17-18 clearly means that we are not to think of His instructions as contradicting the Law. How is this possible?

The key to making sense out of all of this is verse 20 “For I say unto you, That except your righteousness shall exceed the righteousness of the scribes and Pharisees, ye shall in no case enter into the kingdom of heaven”. Everything that follows - the six “Ye have heard it said…but I say unto you” passages – is an elaboration on this idea that the righteousness which God demands of us is higher than that which the scribes and Pharisees taught out of the Mosaic Law. Therefore, when Jesus tells us to “resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also”, He is not contradicting “an eye for an eye” as a standard for courts of law in dispensing criminal justice, but telling us that we are not to follow it as a set of instructions about how to personally behave when someone wrongs us.

The scribes and Pharisees themselves, of course, misinterpreted Jesus’ teachings in the very way He warned against. When they came to Him, in the incident recorded in the eight chapter of the Gospel according to St. John, with a woman who had been caught in the very act of adultery and said “Now Moses in the law commanded us, that such should be stoned: but what sayest thou?” they did so, because they wanted to trick Jesus into contradicting Moses. To interpret Jesus’ answer “He that is without sin among you, let him first cast a stone at her” as opposition to the death penalty is to take His words as a contradiction of Moses which is to make the same mistake as the Pharisees who asked Him the question in the first place. He was not speaking to legal authorities with the job of enforcing the law and administering justice but to lay religious leaders who had come to Him in bad faith seeking something they could use against Him. His answer did not condemn the Mosaic Law and the death penalty but convicted those men of their sinfulness and self-righteousness.

To regard Jesus as an opponent of the death penalty, one must regard Him as being opposed to the Law of Moses. To do so is to discount everything He Himself said about the Mosaic Law and to take the position of both the Pharisees who condemned Him and the Gnostics, the early heretics who opposed the authority and teachings of His Apostles and demonized the God of the Old Testament.

The argument that capital punishment is inconsistent with a pro-life stance is more defensible than the argument that Jesus opposed the death penalty. The person like Wendell Berry, who opposes both the death penalty and abortion out of respect for human life, can be said to be consistent. Capital punishment does not devalue human life in the way that abortion does, however, at least if it is reserved for the most serious of offenses. When someone is sentenced to die for a murder he has committed he has done something to deserve the sentence he receives. When a foetus is aborted the human life that is terminated has not done anything to warrant death. When a murderer is sentenced to die it is in order that justice be served. When a foetus is aborted it is usually for the convenience of people (5) who want to be sexually active without the responsibility that comes with it.

In fact it can be argued that the death penalty actually upholds respect for the sacredness of human life. If human life is sacred, and someone takes that human life in the act of murder, to insist upon the death penalty is to insist that nothing short of the life of the murderer is sufficient to pay for the crime. For this argument to be valid, however, the death penalty must be reserved for crimes like murder. As Dr. Johnson eloquently put it:

Death is, as one of the ancients observes, to tôn phoberôn phoberôtaton, "of dreadful things the most dreadful"; an evil, beyond which nothing can be threatened by sublunary power, or feared from human enmity or vengeance. This terror should, therefore, be reserved as the last resort of authority, as the strongest and most operative of prohibitory sanctions, and placed before the treasure of life, to guard from invasion what cannot be restored. (6)

Dr. Johnson write those words in the context of an argument against the multiplication of capital crimes, and particularly against the use of the death penalty for property crimes. He went on to write “To equal robbery with murder is to reduce murder to robbery, to confound in common minds the gradations of iniquity, and incite the commission of a greater crime to prevent the detection of a less”. Johnson’s reasoning is sound and so Falstaff’s advice to Prince Hal appears to be sound, albeit for different reasons than those which prompted him to offer it.

In acknowledging this qualification to the justness of the death penalty, that it should be reserved for the most serious of crimes, we find ourselves returning again to that ancient principle of justice – let the punishment fit the crime. For crimes like murder, death is a just punishment. For lesser crimes, it is not. (7)

(1) Jesus Himself was, of course, the victim of the most famous abuse of the death penalty in all of history. He was accused of blasphemy – falsely, because His claim to be God was in fact true. He was tried illegally in the middle of the night, not by the full Sanhedrin, but by a few of His opponents assembled for the purpose of condemning Him at the home of the high priest. He was then brought to the Roman governor Pontius Pilate, who, although he knew Jesus did not deserve to die, consented to the crucifixion anyway in order to appease the mob. It is interesting to note that as the Christian faith was born out of an unjust execution, so was the Western philosophical tradition. Socrates was falsely accused of rejecting the gods and corrupting the youth of Athens. This accusation appears to have been at least in part politically motivated – it was made shortly after the restoration of the Athenian democracy and Socrates was known to be of aristocratic sympathy. As told by Plato in Apologia Socrates was found guilty by the assembly by a narrow margin. Asked to recommend an alternative punishment to the death penalty the prosecution was asking for, he proposed, instead of banishment as expected, a lifetimes worth of free dining in the best restaurant in Athens. This significantly increased the votes against him when it came to the sentencing. There are some interesting parallels between the deaths of Jesus and Socrates. St. Peter tried to prevent the arrest of Jesus with a sword, only to be stopped by His Master, who submitted to the arrest and to the crucifixion. Socrates refused to allow his friend Crito to break him out of prison the night before his execution. While their reasons were very different – Jesus went to the cross in order to die for the sins of the world, Socrates, at least as he is depicted by Plato in the Crito, refused to escape on the grounds that to do so would be to commit an injustice against the laws of Athens which he felt he owed a debt of obedience to despite his unjust conviction – both men acted in accordance with the belief that it is better to suffer an injustice than to commit one.

(2) In other cases it is the job of the jury to determine guilt.

(3) Here is how that argument would look expressed as a syllogism:
A. All human beings sometimes make mistakes.
B. The judges who hear capital cases are human beings.
Therefore:
C. A judge hearing a capital case will sometimes sentence an innocent person to die.
The conclusion C. does not logically follow from the premises. All that can be proven from the premises is that judges, as human beings, sometimes make mistakes, not that they will necessarily make a specific mistake.

(4) Or the fifth commandment if you go by the Roman Catholic and Lutheran system of numbering the commandments.

(5) Only a small percentage of abortions take place in the extreme situations pro-choice activists like to focus on in their arguments.

(6) Samuel Johnson, The Rambler,114, April 20, 1751.

(7) The question of whether or not government as it presently exists, i.e, the modern, progressive, egalitarian, democratic, bureaucratic nanny-state, is fit to administer the death sentence is another question entirely. The answer, unfortunately is no.