Since Roe v. Wade (and Doe v Bolton) in 1973 those who believe that the constitutional protections to “life, liberty, and the pursuit of happiness” extend to humans in utero (in the womb) have been called “pro-life.” Since 1973 it has been argued that to be consistently pro-life one must also oppose the capital punishment or the death penalty (the taking of a legally guilty human life by duly authorized civil authorities). There are plausible arguments against capital punishment but it is source of surprise that reasonable people find this objection compelling. First of all, Christians ought to be reluctant to embrace this argument since the Word of God clearly teaches capital punishment. God himself instituted the death penalty for sin in Genesis 2:17, “for in the day that you eat of it you shall surely die.” Not only did God institute the death penalty, he executed it himself. The serpent lied (Gen 3:4) by denying God’s Word, “you shall not surely die.” Indeed, the very gospel promise in Genesis 3:15 involved the execution of the death penalty, “he shall strike your head and you shall strike his heel.” This, of course, was figurative language for the execution of the penalty. God the Son incarnate promised to take that death penalty in our place, as our substitute, but the penalty would be executed nonetheless.
God finds sin so abhorrent that, according to Genesis 6–9, he wiped out the entire “world that then was” (2 Pet 3:6), i.e., certainly the inhabited world, which was nothing but the execution of the death penalty on a massive scale, leaving behind only Noah and his covenant house (8 people) to begin humanity again, after the fall, in a recapitulation of the garden and the fall. As part of that re-institution narrative God declared,
And for your lifeblood I will require a reckoning: from every beast I will require it and from man. From his fellow man I will require a reckoning for the life of man. Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image (Gen 9:5–6).
Whether one thinks, as I do, that there were organized civil governments in the world between the fall and the flood and that this language reflects the re-institution of capital punishment in the post-diluvian world, this passage certainly authorizes capital punishment. It is essential to note that the place in redemptive history where capital punishment was reinstituted: before Moses. Far too often Christian opponents of capital punishment write and speak as if the only biblical for the death penalty is found in the 613 (as the rabbis counted them) commandments of the Torah. This is not correct. We have already seen that capital punishment was invoked at the very beginning of the biblical story. The Noahic epoch in redemptive history is part of that era which Paul considers to belong to the period before the law. This is what he means when he says, “for sin indeed was in the world before the law was given” (Rom 5:13). “The law” refers to the giving of the Mosaic law, the 613 commandments not to the existence of any law whatever. He has already said explicitly that the moral law was revealed in nature (creation) and is therefore known universally because it is inscribed in the human conscience (Rom 1:18–2:16). He writes, “They show that the work of the law is written on their hearts” (Rom 2:15). For Paul the very existence of a holy God, who revealed his law to everyone, implies the necessity of capital punishment: “Though they know God’s decree that those who practice such things deserve to die, they not only do them but give approval to those who practice them” (Rom 1:32). The frame of reference is established in 1:26–27, “…For their women exchanged natural relations for those that are contrary to nature; and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error.” The sexual immorality in view here is contrary to nature, contrary to the creational order. In other words, we do not need Moses to tell us about sin or capital punishment. God’s law was revealed to Adam and in creation and to all his image bearers long before Moses.
Given Paul’s understanding of nature and grace, of natural law, and of the consequences of sin (“the payment for sin is death” Rom 6:23) we should not be surprised to see him unequivocally endorsing the use of capital punishment by that most pagan civil magistrate, Caesar. When he wrote Romans, Nero (37–68 AD) was Caesar. This is significant. It is not as if Paul endorsed the use of capital punishment only by regenerate, Christian magistrates, e.g., (putatively) Constantine (272–337 AD). He writes:
For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer (Rom 13:1b–4; ESV).
There are, I take it, Libertarians and Libertines (notice the conjunction, they are distinct groups) who are either ignorant of Romans 13 or who would that it was not in holy Scripture but Scripture it is. In this passage, the Apostle Paul not only endorses the existence of civil magistrates but recognizes the considerable power they have over all their citizens. This passage only makes sense when we recognize Paul’s robust doctrine of natural revelation and natural law. He knew who and what Nero was when he wrote Romans under the inspiration of the Holy Spirit. He knew what he was saying when he wrote that there is “no authority that is no from God.” We may suppose reasonably that even in the 50s AD, when he wrote these words, he could see that, at some point, the conflict between the cross and the crown would cost him his life. Thus, Paul’s words here are not mere theory because Caesar’s government and sword unjustly put righteous Paul to death by the sword (literally) in the Appian Way, outside of Roman c. 64–65 AD.
Paul’s theological frame of reference here is the covenant of works. Our relation to the civil magistrate is not that of grace (however much modernity has substituted the magistrate from God and made him the benevolent giver of all good things) but of works. So long as we obey the civil law, we shall have no difficulty with the magistrate. Even when the magistrate acts unjustly he is still a divinely-instituted authority. Paul could hardly be plainer: “do what is good and you will receive his approval.” This is nothing but “do this and live.” Remember, Paul wrote these words to the Christian minority in Rome. The Christians were despised by the pagan Romans. About a decade after he wrote these words, the Roman Christians were to be used by wicked Nero as a scapegoat for a fire that he set as part of a corrupt building program.
When Paul says, “for he does not bear the sword in vain” his words are both figurative and literal simultaneously. They are figurative insofar as Nero himself did not execute criminals any more than the mayor of San Diego puts people in jail. San Diego has a police chief and police officers whose job it is to keep the streets safe for law-abiding citizens. They make arrests, they turn over the arrested to the county jail and the corrections officers put the arrested into jail. Should the death penalty ever actually be exercised again in California it will be by the authority of the governor.
The sword to which Paul refers, as I mentioned above, was a literal sword. Under the Roman empire, non-citizens (e.g., the two malefactors on either side of Jesus) were crucified and citizens (e.g., Paul) were beheaded. When Paul wrote “bears the sword” he was referring to the right and duty of the magistrate to perform his function under the natural, creational pattern. It is the natural, creational duty of the magistrate to remove some people from society. Under Mose temporary and typological administration of the covenant of grace there was an explicit list of crimes for which one might receive the death penalty. The Mosaic civil laws and punishments, however, were specific to the Mosaic epoch of redemptive history. They “expired” (WCF 20.4) and they “no longer” obligate the civil magistrate.
Critics of the death penalty like to exaggerate the list and give the impression that we are so enlightened as to be beyond such an extensive list. They might be surprised by the number of types of crimes for which one is eligible for capital punishment in the most enlightened state of California:
- murder committed for financial gain
- previously convicted of first/second degree murder
- multiple murders in same proceeding
- bomb, explosives, grave risk
- for purposes of avoiding lawful arrest or attempt to escape lawful custody
- murder intentional and involved the infliction of torture
- intentional killing of peace officer, federal law officer/agent, fireman in performance of duties
- and defendant should have known or knew official status of victim
- victim was a juror in any court of record in local, state, or federal system in any state and the murder was intentionally carried out in retaliation or prevention of the victim’s official duties
- the murder was intentional and perpetrated by means of a firearm being discharged from a motor vehicle intentionally at another outside the vehicle with intent to kill
- witness of crime intentionally killed to prevent retaliatory testimony at criminal proceeding
- retaliation against judge or former judge of this state or any other state, prosecutor, etc.; state officials or officials of any local government of this state or any other state for reasons relating to their office
- lying in wait
- especially cruel, atrocious, heinous; racial
- committed along with robbery
- kidnapping, rape, sodomy, oral copulation, burglary, performance of a lewd act upon a child under the age of 14
- arson, train wrecking; carjacking
- intentionally poisoned
- rape by instrument
- member of a street gang murdering to further activities of the gang
This list varies from Moses’ but it is just as extensive.
The reader will notice that I have not once appealed to specifically Mosaic legislation to justify capital punishment. All the proofs come from Scripture which speak to the eras before or after Moses, i.e., before the institution of the Mosaic theocracy or after its expiration. There is no need to appeal to Moses to justify capital punishment since it is a matter of creational or natural justice. Caesar was not to execute Mosaic penalties upon the basis of Mosaic, theocratic laws but natural punishment on the basis of natural law, which all the Roman senators and even wicked Nero himself knew by nature, by virtue of being made in the image of God, by virtue of being rational creatures, even though fallen and pagan.
The Connection to Abortion
Capital punishment, the taking of a legally guilty human life by duly authorized civil authorities, is the natural, divinely instituted consequence of certain grave crimes against God and man. There are some crimes that are so great, the consequences so otherwise irreparable, that the only just remedy is for the state to take the life of him who committed such a crime. Those who believe the Bible to be God’s Word can hardly say that capital punishment is immoral without indicting the God in whom they profess to believe. Pagans, however, who have no recourse to special revelation (Scripture) are also able to see the justice of capital punishment in certain cases. Capital punishment has been practiced almost universally in human history until quite recently. We have been considering the case for capital punishment because it has become fashionable for some Christians to argue that to be “consistently pro-life” one must oppose it just as we oppose abortion. It is to this argument that we now turn.
The easy equation of the legal status of human life that is legally innocent before civil law with human life that has so violated civil and natural law as to deserve to be taken is not only sloppy but incoherent. Christian opponents of capital punishment rightly affirm that we are all made in the image of God and thus have a natural right to life and liberty (the relative absence of outward restraints). Human infants subject to abortion do share with murderers a common humanity. Both are made in the image of God. The infant is also manifestly human. He is a person deserving of legal protection. After all, humans conceive humans. We begin as zygotes or embryos and we mature to become an infant (foetus is Latin for infant) but we are always human embryos, and human zygotes, and human infants. The only difference between an infant it utero (in the womb) and an infant post-partum (after birth) is development and that is a matter of time. Because of high-tech imaging we can see now what could not be seen in 1973. We can see that infants at 20 weeks are that, little, tiny human persons who have a natural, God-given, right to life and liberty. We know because of the gruesome photos that emerged from the scandal over the sale of human body parts (of infants) by Planned Parenthood that some of the humans whose lives they abort are identifiable as male or female. There are photos of tiny little feet.
Infants in the womb, however, are different from criminals in one very important respect: they have not violated criminal and natural laws such that they are liable to highest punishment possible. As an Augustinian, and a student of Paul, I know that every human being is conceived and born in sin (Ps 51:5). We are born spiritually dead (Eph 2:1–4) because we are “in Adam” (Rom 5:12–21). We are connected to him naturally and legally. He was the first representative of all humans and when he sinned we sinned and the wages of sin is death (Rom 6:23). Nevertheless, it is not the business of the state to punish inborn sin. It is the natural and divinely instituted duty of the state to punish crimes against neighbor and society. As corrupt as the infant is by nature he is not a criminal and not liable to punishment by the state. He has not forfeited his life by breaking fundamental laws. He has not unjustly and intentionally taken the life of another person. He has not conspired with another person to murder. He has not kidnapped anyone. He has not raped anyone. He has not sexually molested anyone.
When well-meaning Christians oppose the death penalty in the interests of being pro-life they are ignoring this great and basic difference in the legal status of the two classes of persons. The civil right to life and liberty may be forfeited and those who have committed certain gross offenses have forfeited that right to life. The same simply cannot be said of the infant. This seems obvious and undeniable.
One objection to capital punishment is that it denies the humanity of the criminal. This is not true. Capital punishment is not a denial of the worth of human life, it is an affirmation of it. By the very act of murder, the murderer has denied the value of the victim’s humanity. Human life is valuable that capital punishment is the only just punishment for some crimes. It is absurd to try to assign a financial worth to a human life—I am aware that courts try to do so but the attempt illustrates the futility of the calculation. The value of a human life is meant to be incalculable because we were all made in the image of God (Gen 1:26). So it is with the life of the criminal. When someone commits such a great crime as murder, he has violated a fundamental law and a basic tenet of civil society. He has broken the implicit trust that exists between neighbors, that they will live together peacefully and respect the natural right of each to life, liberty, and the pursuit of whatever happiness may be found in this life. There are crimes for which prison is a fitting punishment but in inequity of prison for some crimes seems reasonably obvious. The victim is dead but the criminal is still alive and watching television. He is still receiving visitors and correspondence. His existence in prison may be miserable but he is still alive. The victim is dead. That is the definition of inequity.
It is true that the criminal justice system is imperfect but with the seemingly endless appeals and reviews of the legal process and the remarkable number of procedural safeguards greatly reduces the likelihood that the innocent man will lose his life. The American system intentionally favors the defendant so as to prevent the unjust taking of life by the state. The system is so biased toward the defendant now that there are patently guilty people who not only continue to live and even thrive in the prison system but who live freely beyond punishment.
Even if we concede that there have been unjust executions of the death penalty, that innocent men have been put to death by civil authorities (and doubtless this has happened in Western history) Christians should still affirm the death penalty for the same reasons the Apostle Paul did. Jesus was unjustly murdered by Roman civil authorities (at the instigation of Jewish religious authorities). The Apostle Paul himself was unjustly murdered by Roman civil authorities. Paul knew of Jesus’ unjust death. He proclaimed that fact as part of the Christian gospel. He knew of other instances of the unjust execution of capital sentences but he still affirmed the duty of the magistrate to execute the sentence. He still wrote that those who do good have nothing to fear from the magistrate. Obviously that is not true in every instance but it is true enough as a rule, even under the administration of a wicked and corrupt ruler like Nero, that he could teach it.
How could Paul defend the death penalty despite the existence of abuse and maladministration? He was able to do so because he believed in the existence of natural law and natural justice (as discussed earlier) and because of his eschatology. He knew that this is fallen world and that civil justice is administered by men whose minds, hearts, and wills are corrupted by sin. He knew that the Roman government and justice system was populated by pagans and time servers. He was not seeking perfection in this fallen world. He had a realistic eschatology. He understood what it means to live in this world, this age. It means that even the abuse of a good thing (capital punishment) does not render that good useless or null. Even if the state errs or acts unjustly, the duty to punish criminals remains. Certainly we ought to seek to correct the system. Certainly we ought to seek to prevent the innocent from unjust incarceration and punishment but those who commit grave crimes ought to face the consequences of those acts even in an imperfect system.
Civil justice, including capital punishment, is not the final judgment. Those unjust judges and magistrates who have abused their authority by unjustly imprisoning or even unjustly taking the life of the legally innocent shall face a judge who knows the hearts and acts of all, who never errs, and whose execution of justice is perfect and final. The criminally guilty, however, are liable to an approximation of perfect justice, its analogue, in this life. Unborn humans have incurred no such liability before criminal courts. Before the state they are perfectly innocent. They above all others in society deserve the full protection of law. The rest of us, especially we grown ups, have violated civil law and, by God’s mercy, escaped civil punishment but unborn infants are perfectly just before criminal law. They have a natural right to life and liberty. Thus, it behooves Christians especially but all of us citizens to distinguish clearly between criminals and legally innocent persons in the womb.