[Avodah] Catholic Judges in Capital Cases

[Micha Berger]

On Tue, Nov 03, 2020 at 10:38:10PM +0000, Rich, Joel via Avodah wrote:
> I found the statements below particularly interesting and would love to
> discuss parallels with our thought:

The then-future Justice Barrette wrote:
>> CATHOLIC JUDGES IN CAPITAL CASES
>> To anticipate our conclusion just briefly, we believe that Catholic
>> judges (if they are faithful to the teaching of their church) are
>> morally precluded from enforcing the death penalty....

OTOH, the 7 mitzvos Benei Noach allow the use of capital punishment.

On the meta-issue, Xianity has "render unto Caesar", which may be the
cultural basis for accepting a separation of church and state. Whereas
halakhah very much avoids drawing a line between religion and state.

In fact, because the 7 mitzvos include batei dinim, a Torah observant
judge may at times be called on to be machmir in this halakhah at the
expense of another. So to me the question would be halachic parameted;
exactly when does a SCOTUS's *halachic* obligation to uphold the
Constitution, or another judge's or juror, or attourny's duty to uphold
the law override what?

Given that the law often involves both capital punishment and war, I
am not even sure piquach nefesh can be trivially taken off the table
in other contexts either.

>> In Catholic moral theology, there is an extensive literature on
>> this subject, usually collected under the heading of cooperation
>> with evil. Stated abstractly, these are cases where one person ("the
>> cooperator") gives physical or moral assistance to another person ("the
>> wrongdoer") who is doing some immoral action...

Like mesayeia and lifnei iver?

RJR again:
> Implicit in the Chief Justice's observation are two reasons why we
> should not automatically disqualify judges for holding such views or
> convictions. One is that everyone has them. If we applied this criterion
> faithfully we would disqualify the entire judiciary. The rule of necessity
> that allows judges to sit on cases about judicial compensation applies
> here too: better a flawed judge than no judge at all. The second is
> that the possession of convictions is not only inevitable, it is to some
> extent desirable.

The whole idea of a separation of religion and state becomes
impossible. Laws should be moral. Religion (including the various forms
of atheism as religions for this purpose) provides the framework by
which an individual decides what is moral. No judge, for that matter no
legislator or voter, could entirely avoid bringing their religion into
their politics.

Tir'u baTov!
-Micha

-- 
Micha Berger                 Our greatest fear is not that we're inadequate,
http://www.aishdas.org/asp   Our greatest fear is that we're powerful
Author: Widen Your Tent      beyond measure
- https://amzn.to/2JRxnDF                      - Anonymous