In a doctrinal clarification apropos for the feast day of Alphonsus Liguori, patron of moral theologians, the Congregation for the Doctrine of the Faith has modified the Catechism of the Catholic Church on the death penalty. Where the 1997 version left open, at least in theory, recourse to the supreme temporal punishment, Pope Francis has more strongly judged that the death penalty is “inadmissible because it is an attack on the inviolability and dignity of the person,” quoting the Holy Father’s address of 13 October 2017. These changes build upon prior remarks by popes John Paul II and Benedict XVI calling for the abolition of the death penalty.
Primo sono, the edict vindicates the position of E. Christian Brugger, who has extended the New Natural Law school’s emphasis on the impermissibility of directly intending any death to the question of state executions. It would also seem a loss for Edward Feser, who has advocated for a return to the traditional Catholic position not only that the death penalty is necessary for prevention and deterrence, but also that it is a proportional retributive punishment. So bright a luminary as the late Cardinal Dulles cautioned that a change in the Church’s position on the death penalty would be a reversal and portend the loss of any principled basis for doctrinal development in moral doctrine. Even Brugger has agreed that the position of Scripture and Tradition militates against this new position and has laid most stress on prior teaching being non-definitive for that reason.
But two other interpretive options are available. First, it is possible that Francis and his two predecessors have simply made a mistake (at worst) or spoken imprecisely (at best). The Catechismand the approval of a CDF clarification in an “ordinary session” are instances of the pope’s ordinary Magisterium, which is not definitive. The criterion used by some moral theologians to argue against purportedly non-definitive doctrines on integralism and sexual ethics, to pursue a hermeneutic of doubt and replacement in such teachings, surely would cut here, as well. If prior teaching was non-definitive, why is this teaching definitive? Besides, the CDF is not claiming heterogeneous development, and Catholics owe submission even to prudential judgments qua safe, if not to doctrines qua true.
A better interpretive approach, in my mind, draws from the nuanced way in which the CDF’s prefect, Cardinal Ladaria, calls attention to the historical circumstances that make the Church’s judgment appropriate. In his explanatory letter to the bishops of the Catholic Church, Ladaria notes that Francis’s judgment “is not in contradiction with the prior teachings of the Magisterium.” How? By appeal to the social circumstances of the prior teaching: “These teachings, in fact, can be explained in the light of the primary responsibility of the public authority to protect the common good in a social context in which the penal sanctions were understood differently, and had developed in an environment in which it was more difficult to guarantee that the criminal could not repeat his crime.”
Were the death penalty itself intrinsically evil, it must never be used no matter what the circumstances. But here we see that, in the judgment of Francis, the death penalty is permissible in one age and impermissible in another precisely because of a change in circumstances. This obviously rules out Brugger’s position, which holds that the death penalty is always intrinsically evil but the Church has only lately realized this. Rather, what Ladaria says is that modern social conditions allow for better means to be used in punishing criminals, achieving both a safeguarding of the common good and a testimony to the inherent dignity of the worst criminals as made in the image of God. As Benedict XVI said, the abolition of the death penalty would be “substantive progress made in conforming penal law both to the human dignity of prisoners and the effective maintenance of public order.” In the past, however, the death penalty was “an acceptable means,” to use Ladaria’s phrase, to safeguarded public order. The use of the death penalty today is not morally necessary for this end.
Finally, given that this new teaching on the death penalty depends on circumstances, it can only belong to non-definitive teaching. Donum veritatis, the CDF’s 1990 clarification on the vocation of a theologian, noted that when historical circumstances are in play, a teaching is conditional upon those circumstances (n. 24). In other words, that the death penalty is inadmissible is not an absolute judgment, but one conditional on a certain state of civilization obtaining. So long as the social conditions referred to in the CDF clarification obtain, the judgment that the death penalty should not be used also obtains. In other words, the Church’s teaching is simply becoming surer, from John Paul II to Benedict XVI to Francis, that there are practically no modern circumstances that allow for recourse to the death penalty, thereby calling for abolition. This does not imply that the state has no power to put to death, but that modern circumstances being what they are, there is moral need not to exercise this power.
There is a very crucial (yet often overlooked) concept within the Thomist tradition that captures such conditional advancements in justice. The concept is the “law of nations” (ius gentium), which is a kind of medium of universal custom existing between the unchanging, universal precepts of the natural law and the mutable, particular laws of this or that political community. We may apply the concept to the Church’s current teaching on the death penalty or religious liberty, in which the language of human dignity occurs right alongside appeal to circumstantial changes in society. One classic institution of the law of nations was the enslavement of the vanquished in a just war, a “means” that preserved their lives while still reducing the threat of future unjust aggression. And yet as early modern Thomistic expositors of the law of nations noted, this “means” was not so natural that it couldn’t be outlawed in Christendom, replaced by the practice of ransoming prisoners of war rather than reducing them to perpetual slavery. There are two main interpretations of this concept in the Thomistic tradition: that this body of law consists either in universal customs added to the natural law by the human race as “morally necessary” for keeping the ends of the natural law (the Salamancan school of Vitoria and others); or in conditional deductions from natural law principles about what is strictly just in this or that set of circumstances (neo-Thomists such as Simon and Labourdette). In either case, the change in circumstances makes possible a change in the practical judgment regarding certain means to a natural law end, in this case, the state’s use of its power over the life of criminals for the sake of the common good.
The fascinating thing about institutions of the ius gentium is that, while mutable in themselves, their universal scope makes them existentially indistinguishable to the common person in any given age. We can call this category the “universal existential evil,” in contrast to the “intrinsically evil.” In other words, that slavery was licit then would “feel” as natural as our abhorrence to slavery now. The “inadmissibility” of the death penalty ought to be understood in the same way, and is perhaps the reason why some “feel” this teaching to be a reversal of the very doctrinal principles on which the old teaching was based. Just as Salamancan theologians such as Báñez appealed to the influence of “the Church” in changing the practice of enslavement, so Francis is appealing to “the light of the Gospel” in changing the practice on the death penalty.
Accordingly, any new prudential judgment of the Church in such matters should correlate with an advancement in changeable means to unchangeable ends. This “law of nations” interpretation is simply that in new circumstances, new means are possible that were not practicable before. Since they are better means, they should replace by means of a new universal custom what was permissible before but no longer best. So, an abolition of the death penalty can replace its practicable availability in earlier times, without entailing that the Church has taught moral error for her entire history until just yesterday. (Needless to say, I find the long testimony of Scripture, the Fathers, and the Magisterium on this question to be definitive as to the question of the state’s power to put to death.)
All I have sought to establish with this post is that this judgment is within the competency of the Magisterium, even as it is also necessarily contingent and nondefinitive. The “law of nations” concept involves universal customs that are proximate to the natural law and thereby existentially of great authority, since these customs will transcend particular, civil laws. Many questions remain, of course. What of the murder of prison guards and other inmates? What of less developed countries? What of prisoners capable of doing damage to public order while in prison? Was retribution not as important a purpose of punishment as some scholars have thought? These are important, but they are not as important right now as noticing that Francis is within his office to make such a prudential judgment and enshrine that judgment in the Catechism as existentially binding in the way I have claimed.
Francis’s move yesterday is another step in the direction of the trend in Catholic social doctrine of further limiting and constraining state authority in response to the totalitarianisms of the nineteenth and twentieth centuries. Will there be any state authority left once the Church calls for functional abolition of that power which in prior ages was the basis for proving that the state’s origin transcended the mere will of human beings? Perhaps one can situate the advance in a different frame: that the Gospel’s light has shown a way of tolerating evil in the midst of society for the sake of highlighting Christ’s mercy and willingness to abjure violence for the sake of our salvation. Society should therefore renounce even legitimate violence when it is no longer necessary to better highlight the dignity of all human life, as John Paul II urged in Evangelium Vitae, further constraining traditional teachings on the death penalty and war to only the purpose of necessary defense.
Thank you Dr. Turner for offering a sagacious interpretation that avoids the mistakes others make of thinking either that the Pope is a heretic because he comes to a conclusion that differs from previous popes or the mistake of thinking that the theory of how doctrine develops is immaterial as long as we get the right outcome. Your interpretation brings together both the traditional claim that the state can have the legitimate authority to kill and the more recent “development” that capital punishment is, in today’s circumstances, a “universal existential evil.” The concept of the “law of nations” is a crucial one that we rarely hear much about in discussions of the natural law, so thank you for teaching us all some of its essential features.
Here are a few questions I have:
1) What do you make of the word choice “inadmissible” (“the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”; “poenam capitalem non posse admitti quippe quae repugnet inviolabili personae humanae dignitati”)? Although it comes in a quote from Francis from an earlier address, it is a conspicuous way to phrase such an important change.
2) This is a universally binding yet non-definitive teaching. Is “non-definitive” an essential feature of all contingent magisterial judgments, whereas definitive would be an essential feature of, for instance, magisterial judgments that are rooted in claims about the essence of human nature? I get the sense that some will balk at the idea that there can be universal-but-non-definitive papal teaching. Perhaps this is where the law of nations shows that it is an essential concept.
3) What is the significance of the explanatory letter of the CDF for the interpretation of the change? My question is not about content, but rather about genre and where that genre fits within how we are to understand magisterial authority as it relates to the interpretation of something like the catechism.
Finally, I will simply underscore your point that this issue of capital punishment raises the bigger question of the authority of the state, its justification and its scope.
Dr. Evans, good questions.
1) The term “inadmissible” (non posse admitti) is apt for signifying a universal change in custom. The action no longer capable of being admitted was clearly admissible before, but now is not. To borrow from Basile Valuet, shooting at the enemy is permissible before the armistice (a change in circumstance) but is inadmissible after. Or, to build on my example from the School of Salamanca, enslaving the vanquished in a war between Christians became inadmissible. To say inadmissible is not to say intrinsically evil.
2) This is a good area for more research, but it would seem that if a teaching depends on a condition obtaining in society, then that teaching would be valid for as long as the conditions obtain. Now it could also be that the teaching demands that the conditions be maintained by public authority, in which case the teaching is also an ideal from which current conditions should not recede. But I will have to think about this more.
3) The CDF letter is part of Pope Francis’s ordinary magisterium since he approved it in general form. This applies to the various instructions of the CDF throughout the years. Check the bottom of the document, for they will typically have some line (as this one does) detailing the type of papal approval given. Further, the CDF, unlike other dicastries and congregations, participates in the pope’s teaching office (at least since the 1970s when Paul VI reorganized the curia). So +Ladaria’s letter, being approved by Francis, is an official commentary and should be used to interpret the meaning and scope of the Holy Father’s rescript, according to the normal rules of theological interpretation. Catechisms only have as much authority as the source documents (Scripture, Tradition, Magisterium). The Catechism’s authority and specific teaching on this topic stems from the ordinary magisterium of John Paul II, Benedict XVI, and now especially Francis’s judgment that conditions are such that the death penalty is inadmissible.
“These teachings, in fact, can be explained in the light of the primary
responsibility of the public authority to protect the common good in a
social context in which the penal sanctions were understood differently,
and had developed in an environment in which it was more difficult to
guarantee that the criminal could not repeat his crime.”
Dr. Turner says that the above quote from Cardinal Ladaria implies that ” the death penalty is permissible in one age and impermissible in another precisely because of a change in circumstances.”
I’m not fully convinced. Ladaria appeals to a social context where things were understood differently, and that environment, where it was more difficult to guarantee safety, led to the development of the old teachings because the death penalty was thought necessary; but now, we have an increased awareness, and “in the light of the Gospel” we have finally come to the right conclusion. Nowhere does he actually say that the old teaching was correct in the past and death penalty was acceptable and now it’s not; he seems to imply it was a misunderstanding (Francis would add, as in his 2017 address, that this was the result of “a mentality more legalistic than Christian”.)
Notung,
Sorry for the delay in responding. Classes begin next week!
Your interpretation is possible, though I think of Dulles’s warnings about magisterial credibility. Additionally, this position you articulate–don’t know if you’re endorsing or only relaying–would seem to want to have it both ways: circumstances then made it an “acceptable means” for fostering the common good, but actually, it was a “legalistic” mentality that was a misunderstanding etc. Also, if the Holy Father really meant to say “intrinsically evil”, it isn’t as if he doesn’t know the words. He’s just repeating JP II’s language on dignity and making the application more absolute. Lastly, nothing prevents the Holy Father from making this prudential judgment with arguments that suffer deficiencies, as the Church readily admits regarding ordinary teaching.
I address some of these points in a longer version of the piece that will come out in the future. When its up I will try to link back.
While I find your arguments reasonable, I am disturbed by the rationale given to support this change, in particular this one:
“This development centers principally on the clearer awareness of the Church for the respect due to every human life.”
This strikes me as a stunning claim: that for 2000 years the church had a deficient understanding of the respect due to every human life, and that it is only with the ascension of Pope Francis that she finally achieved a proper understanding. Are we really to accept that the church couldn’t even get right something so central to her faith?
There are other problems as well, for example the assertion that: “the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person.” Your argument is that new circumstances make the death penalty no longer appropriate even though it was appropriate in the past, but if it is inadmissible today because it is “an attack on the inviolability and the dignity of the person” today then surely it was equally inadmissible yesterday for the same reason. That is, your argument seems invalidated by this assertion.
Finally there is this: “…penal sanctions applied by the modern State, which should be oriented above all to the rehabilitation and social reintegration of the criminal.” This sounds like the primary objective of punishment is now rehabilitation, but this cannot be so given that CCC 2266 was not changed and still states that “The primary scope of the penalty is to redress the disorder caused by the offense.” How do we justify Cardinal Ladaria’s explanation with the catechism?
The attempt to banning capital punishment seems to have gone very much astray.
Ender,
Thanks for these questions. I agree that the dignity of the person rationale cannot be the sufficient basis of this development, and stated in the post why so. That addresses your question two. If the Holy Father meant that dignity would be a sufficient rationale, that would entail the problem you state in your first question. As for three, one could say that retribution is indeed primary, but the necessity of proportional retribution is not the only factor at stake. These are points also made by JP II.
A longer version of this essay will be published in the future, in which I address these concerns in fuller detail. I will try to remember to link when up. Thanks again!
The expanded version of my argument has been published with Nova et Vetera. Visit my Academia.edu page (https://msmary.academia.edu/BarrettTurner) for the article.