A central principle of a just society is that every person has an equal right to “life, liberty, and the pursuit of happiness. ” Within that framework, an argument for capital punishment can be formulated along the following lines: some acts are so vile and so destructive of community that they invalidate the right of the perpetrator to membership and even to life. A community founded on moral principles has certain requirements. The right to belong to a community is not unconditional. The privilege of living and pursuing the good life in society is not absolute. It may be negated by behavior that undermines the nature of a moral community.
The essential basis on which community is built requires each citizen to honor the rightful claims of others. The utter and deliberate denial of life and opportunity to others forfeits ones own claim to continued membership in the community, whose standards have been so flagrantly violated. The preservation of moral community demands that the shattering of the foundation of its existence must be taken with utmost seriousness. The preciousness of life in a moral community must be so highly honored that those who do not honor the life of others make null and void their own right to membership.
Those who violate the personhood of others, especially if this is done persistently as a habit must pay the ultimate penalty. This punishment must be inflicted for the sake of maintaining the community whose foundation has been violated. We can debate whether some non-lethal alternative is a fitting substitute for the death penalty. But the standard of judgment is whether the punishment fits the crime and sufficiently honors the nature of moral community. Agape, Christian love, is unconditional. It does not depend on the worthiness or merit of those to whom it is directed.
It is persistent in seeking the good of others regardless of whether they return the favor or even deserve to be treated well on the basis of their own incessant wrongdoing. An ideal community would be made up of free and equal citizens devoted to a balance between individual self-fulfillment and the advancement of the common good. Communal life would be based on mutual love in which equality of giving and receiving was the norm of social practice. Everyone would contribute to the best of ability and each would receive in accordance with legitimate claims to available resources.
What would a community based on this kind of love do with those who committed brutal acts of terror, violence, and murder? Put negatively, it would not live by the philosophy of “an eye for an eye, a tooth for a tooth, and a life for a life. ” It would act to safeguard the members of the community from further destruction. Those who had shown no respect for life would be restrained, permanently if necessary, so that they could not further endanger other members of the community. But the purpose of confinement would not be vengeance or punishment.
Rather an ideal community would show mercy even to those who had shown no mercy. It would return good for evil. The aim of isolation is reconciliation and not revenge. Agape never gives up. It is ever hopeful that even the worse among us can be redeemed so that their own potential contribution to others can be realized. Opportunities for confronting those who had been hurt most could be provided to encourage remorse and reconciliation. If a life has been taken, no full restitution can be made, of course, but some kind of service to the community might be required as a way of partially making amends.
Such, in brief, is the argument for and against capital punishment, one founded on justice and the nature of moral community, the other resting on love and the nature of an ideal spiritual community. If we stand back from this description and make an attempt at evaluation, one point is crucial. The love ethic requires a high degree of moral achievement and maturity. It is more suitable for small, closely-knit communities in which members know each other personally and in some depth. Forgiveness and reclamation flourish best in a setting in which people can participate in each other’s lives.
If you press the agape motif to its highest manifestation, it becomes an ethic of non-resistance to evil, unqualified pacifism, and self-sacrifice in which self-interest is totally abandoned. The non-resisting Jesus on the cross who surrenders his life to save others is the epitome of agape at this level. Love at this point becomes superethical. It is grounded in a deep faith in God that surrenders any reference to earthly justice. That is the reason for speaking of love and the nature of an ideal spiritual community.
Love of this kind abandons the right to kill another in self-defense and will refuse absolutely to kill enemies even in a just war. If made into a social ethic, it requires the poor to sacrifice for the rich, the sick to sacrifice for the healthy, the oppressed to sacrifice for the oppressor. It allows the neighbor to be terrorized, brutalized, and slaughtered, since restraint of the aggressor is forbidden. All this is indefensible on moral grounds. To make sense of this, it is helpful to distinguish between an ethical dimension of love and an ecstatic dimension.
Love as an ethical ideal seeks a community based on mutuality and reciprocity in which there is an equality of giving and receiving. Mutual love has a justice element in which every person has an equal claim to fulfillment and an equal duty to be responsible. Ethical love is unconditional and will reach out to others even when they lack merit. But it will resist encroachment upon its own equal claim to fulfillment and will repel if possible any denial of ones own right to be fully human in every respect.
Against the pacifist, ethical love would justify killing in self-defense and killing enemies in a just war when non-lethal alternatives are unavailable. They are necessary and tragic emergency means here and now to stop present and ongoing violence. Capital punishment is opposed since the crime has already been committed, and isolation can protect society against future violence. Love in the ecstatic dimension becomes superethical. In ecstasy one is delirious with impetuous joy in the presence of the other and totally devoted to that person’s happiness and well- being.
In ecstasy we do not count the cost to ourselves but are totally self-giving, heedless of our own needs. In this mood sacrifice for the other is not an ethical act of self-denial but the superethical expression of what we most want to do. Ecstasy involves the unpremeditated overflow of boundless affection and the impulsive joy of exhilarating union with the loved one. The ecstatic lover dances with delight in the presence of the beloved. Sensible calculations balancing rights and duties have no place. Rational ethics has been transcended by spiritual ecstasy.
Ecstatic love expresses itself spontaneously in a certain frame of spirit. Love expressed in ecstasy gives all without regard to whether the recipient has any claim on the gift. It is pure grace. Consider the story of the woman who poured expensive perfume on the feet of Jesus (Mk. 14:3-9). She was displaying love in the ecstatic dimension. Some present were thinking ethically. They complained that this perfume could have been sold and the proceeds given to the poor. On ethical grounds they were right. What the woman did was indefensible as a moral act.
It was irrational and superethical. This deed flowed spontaneously from ecstatic love. Love has both an ethical and an ecstatic or superethical dimension, and we should not confuse the two. It is quite clear, however, that ecstatic agape cannot be the norm of large, impersonal societies. A corporation cannot exist on the basis of forgiving seventy times seven an incompetent employee whose repeated ineptness is costing thousands of dollars. Ecstasy is not even the mode in which we can live all the time in the most exemplary family life with spouses and children.
Ecstatic love is an occasional, fabulous, wonderful overflowing of spectacular affection that adds immeasurably to the joy of life, but it cannot be the day to day standard for ordinary life even in the family or the church. Can Christian love in the ethical sense be an appropriate norm for a large, secular, pluralistic, civil society? Can unconditional love for the other that regards the welfare of the neighbor equal with ones own be the ideal expected of the citizens of New York or the United States?
Surely, to agree with Reinhold Niebuhr, that would be to hope for an “impossible possibility. ” Ethical love is a description of ideal life in the family, in the church, and other small communities in which unconditional regard for each other can be lived out in face-to- face relationships. Even in these settings, we will often fail, but we can hold it up as the criterion by which we are judged and to which we aspire even in our shortcoming. In this sense, ethical love is the supreme norm that serves as both goal and judge of all conduct.
Realistically, however, we can hope only for some rough approximation with decreasing levels of attainment as we move away from intimate communities toward larger collectives. Nation states are not likely, even occasionally, to become ecstatic in their devotion to each other! Mutual, not even to mention sacrificial, love is hardly the guiding rule of relations between General Motors and Toyota, nor does either have aspirations in that direction. A workable ethical standard for the state and the nation will appeal to the ideals defined by justice and the requirements of a moral community.
To say it otherwise, ethical love expressed as social policy for large, impersonal societies takes the form of justice. What that norm involves for New York or the United States as secular, pluralistic societies cannot be spelled out here. Within this framework a strong but debatable case can be made for capital punishment. Pragmatically and politically, of course, Christians have to work within the framework of justice as defined by the secular society in which they have their citizenship and seek to transform it in the light of their own ideals.