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March 17, 2012

"Jurisprudence that Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse"

The title of this post is the title of this new article by Kurt Denk now available via SSRN. Here is the abstract:

Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court’s expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis "necessarily embodies a moral judgment."  This Article compares that jurisprudence with the Catholic Church’s present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning.  It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse.

March 17, 2012 at 10:01 PM | Permalink


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Ironic. The Church burned a million people at the stake to impose its orthodoxy and to generate massive wealth from confiscation of the victims' assets. After high church officials were beheaded by French patriots in the French Revolution, it began to oppose the death penalty. The Roman Catholic church needs to shut up about the death penalty because it looks hypocritical and ridiculous moralizing about it after its horrid history.

Posted by: Supremacy Claus | Mar 19, 2012 12:41:34 AM

SC, I am not even sure where to start. Got a reputable source (not Protestant propaganda)for "a million" burned at the stake? And it was the Church's assets that were confiscated during the deformation. In fact, it was a primary reason that the deformation occurred. Just one example is the German aristocracy pushing Luther in that direction because they wanted the Church's property. I will not even get into Henry VIII and Thomas Cromwell and what they did to Thomas More, John Fisher, and the religious houses in England.

As far as looking "hypocritical and ridiculous." Should the US stay silent about contemporary chattel slavery in Africa in order to not look "hypocritical and ridiculous?" One of the biggest disservices we can do to history is apply current standards to practices several centuries before and to be inconsistent with the treatment. For instance, the inquisition is constantly thrown into the arena as a great example of Church corruption. In fact, although it was abhorrent by today's standards it was the civil courts that did most of the abuses and most people accused in the civil courts would REQUEST the religious courts because they gave many more rights and were generally fairer.

IMO, the Church's position on the DP is wrong. It is based on the false premise that society can be kept just as safe by keeping killers in prison, ignoring the fact that officers, staff, and other inmates are part of "society." However, I would also point out that it does not see the DP as "inherently evil" like abortion and does NOT bind Catholics to agree with its position.

Posted by: TarlsQtr | Mar 19, 2012 11:06:43 AM

I am a direct descendant—through my Mother--of Sir Thomas More & William Roper.

Just a few points: there is a lingering credibility gap for Rome on justice, not least of which because:

(1) Throughout my lifetime, they have preferred to send molesting priests to rehabilitation and other parishes, rather than to law enforcement;

(2) They continue to rely on ***Thomas Aquinas as their foremost intellectual and philosophical instructor, though he provided the foundation for the thoroughly unbiblical Inquisition (see below);

(3) Their apologies for abuses are ludicrously late and disingenuously ambiguous, e.g.:
"We humbly ask for forgiveness for the part that each of us with his or her behaviours has played… to disrupting the face of the church…let us forgive the faults committed by others towards us." John Paul II (2000)

***"Though heretics must not be tolerated because they deserve it, we must bear with them till, by the second admonition, they may be brought back to the faith of the church. But those who, after a second admonition, remain obstinate to their errors, must not only be excommunicated, but they must be delivered to the secular power to be exterminated".
~~~Aquinas's Summa Theologica, vol. 4 (1274)

P.S. Although More was a great husband and father by all accounts, he had an oft-used torture chamber for Protestants in his home.

Posted by: Adamakis | Mar 20, 2012 2:24:40 PM

Hi Adamakis,

A few points on your few points. ;-)

You state: "(1) Throughout my lifetime, they have preferred to send molesting priests to rehabilitation and other parishes, rather than to law enforcement;"

Very true that this a great stain on the Church. However, we need to put this into context.

The amount of priests accused of misconduct is somewhere in the 2% area. An overwhelming majority of these accusations are from the 60's and 70's, when the cultural and psychological trend in this country was to do just what the church did, move and treat offenders with therapy (another thing to blame on the baby boomers). Again, this was a movement throughout our society, not just the RCC.

I would also point out that the rate of offense in the RCC was considerably lower than society in general, the Boy Scouts, public schools, and other Christian denominations. Studies have found that approximately 10% of Protestant pastors self-report sexual misconduct (of all kinds) and it is likely higher (data is hard to come by because these denominations have little central authority and do not report). The biggest difference seems to be that accusations against the RCC are national stories while "Joe's Bible Church" gets a day or two in the local newspaper. John Jay Law School did a comprehensive study of this issue and their report is here: http://www.usccb.org/issues-and-action/child-and-youth-protection/upload/The-Causes-and-Context-of-Sexual-Abuse-of-Minors-by-Catholic-Priests-in-the-United-States-1950-2010.pdf

The last thing I will say on this point is that the RCC now has the strictest reporting procedures of any denomination. Despite their past crimes, it is plainly obvious that they have answered the bell, while other denominations have not. The SBC, for example, still has virtually no method for reporting misconduct, giving rise to websites like stopbaptistpredators.org.

You stated: "(2) They continue to rely on ***Thomas Aquinas as their foremost intellectual and philosophical instructor, though he provided the foundation for the thoroughly unbiblical Inquisition (see below);"

That there will be abuses in a 2000 year old church should be obvious, IMO. That said, The Inquisition is one of the most missunderstood historical events in history. As I stated previously, the Inquisition courts were requested by the accused over the secular counterparts because of their history of fairness. They had fewer executions, more defendent friendly rules of evidence and procedure, and more exonerations. You are not even applying today's standards to the inquisition. You are applying them to the myth of the inquisition.

You stated: "(3) Their apologies for abuses are ludicrously late and disingenuously ambiguous, e.g.:"

Agreed, but let's remember that there are still numerous cases under litigation. I am sure the Bishops and Vatican are limited to what they can legally say.

You stated: "P.S. Although More was a great husband and father by all accounts, he had an oft-used torture chamber for Protestants in his home."

Yes, More killed people. Remember, he did not live in 2012. This was the "standard" of the time, used by both the secular authorities and deformers as well.

Posted by: TarlsQtr | Mar 21, 2012 9:58:03 AM

how true TarlsQtr

people seem to forget times have changed. If you take todays laws and apply them to the people who FOUNDED this country the whole place could be consdered to have been founded as a pedo haven! the whole damn bunch under modern law would be considered rapists! and pedofiles!

Posted by: rodsmith | Mar 21, 2012 11:14:24 AM


Please put this into context:

"Pope's Mexico Visit Clouded by Allegation that Vatican Knew of Abuse In Mexico"

~~~"internal Vatican documents showing the Holy See knew decades ago of allegations that the Mexican founder of the disgraced Legion of Christ religious order was a drug addict and pedophile."

~~~"...details of the abuse were made public years ago in Mexico and the Spanish-speaking world"

~~~"...The importance of this book ["La voluntad de no saber" ("The will not to know"] is that it documents the irrefutable evidence and proof that the Vatican has been lying about Maciel," said Bernardo Barranco, an expert from the Religious Studies Center of Mexico

~~~"Jose Barba...along with other priests in 1998 brought a church trial against the Legion's founder, the Rev. Marcial Maciel, for having sexually abused them while they were seminarians."

~~~"The Rev. Richard Gill, a prominent U.S. Legion priest until he left the congregation in 2010 after 29 years, said the documents' publication could be tumultuous... "The revelation of these documents...shows that there were solid grounds for the removal of Fr. Maciel more than 50 years ago,"

~~~"During foreign trips to the United States, Australia, Britain, Malta and Germany, Benedict has heard firsthand the stories of sexual abuse from victims and prayed with them."

~~~"The former Cardinal Joseph Ratzinger, now Benedict, headed the office that received their complaint in 1998, but it took the Vatican eight years to sanction Maciel for the crimes during which time the accusers were *branded as liars* and discredited by the Legion."

~~~"Maciel, meanwhile, continued to enjoy Pope John Paul II's highest regard as the founder of one of the world's fastest-growing religious orders, able to attract money and vocations to the church despite the mounting accusations against him."

~~~"John Paul admired the Legion's orthodoxy and discipline qualities which set it apart from many other religious orders and made it attractive to many of Mexico's political and financial elite who sent their children to the Legion's schools and seminaries."

~~~"[T]he order finally admitted Maciel had molested seminarians and fathered three children with two women. A Vatican investigation determined Maciel, who died in 2008, was a religious fraud who had built an order based on silence and obedience that allowed his double life to go unchecked."
3/21/12 Fox News Latino http://latino.foxnews.com

TarIsQtr & rodsmith:

Were any Protestant seminaries pulling this off between the '50s-'00s?
They just don't report?
Hows bouts the Founders?

Posted by: Adamakis | Mar 21, 2012 1:50:58 PM


Read the John Jay study. No one is denying there have been egregious acts. However, the problem in the RCC has actually been smaller than in most Protestant denominations and in society in general. I contend that the Jay study depicts a much fuller picture than your news article.

Again, the RCC is a 2000 year old institution of 2 billion people and 400,000 clergy. That some pretty bad stuff will happen in an organization that size should be pretty obvious to a smart guy like you.

You state: "Were any Protestant seminaries pulling this off between the '50s-'00s?"

Five minutes on stopbaptistpredators.org should answer that question for you, and that is only ONE of the 30,000 deformist denominations.

Posted by: TarlsQtr | Mar 23, 2012 1:48:40 PM


Do you see the same "credibility gap" when the US government speaks about issues pertaining to chattel slavery, race, and women's rights? Or does this "credibility gap" only extend to a specific religious organization whose crimes you continue to bring up (The Inquisition) was far more timid and occurred centuries before slavery?

You do not appear to have a very consistent position...

Posted by: TarlsQtr | Mar 24, 2012 10:46:38 AM

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