In yesterday’s post I considered two arguments for how the Catholic Church could introduce an absolute prohibition on the death penalty into its teaching while remaining consistent with earlier teaching that the state is authorized to use the death penalty if necessary for the defense of the public: 1) although states have a hypothetical right to carry out the death penalty in defense of the public, the death penalty as it is currently practiced is intrinsically evil; and 2) the death penalty must be linguistically distinguished from the defense of the public by the state. These reflections were occasioned by Pope Francis’s call to consider a revision to the Catechism of the Catholic Church stating that the death penalty “is per se contrary to the Gospel.” In today’s post I will consider two arguments that are more radical than the previous two in that they call into question the church’s earlier teaching on the death penalty in a way that the previous two do not. As with yesterday’s post, these arguments should not be taken to be my own definitive positions, but rather arguments made for the sake of discussion.
3. Earlier church teachings on the death penalty were not authoritative.
The third argument is quite different from the previous two because it suggests that while church authorities have over the centuries taught in favor of the death penalty, these teachings should not be considered authoritative statements of definitive doctrine. This is because they were not intended as such. E. Christian Brugger makes this argument in a response to Edward Feser’s criticisms of Pope Francis’s remarks, arguing, for example, that a statement by Pope Innocent III from the thirteenth century often cited by defenders of the death penalty comes from a personal letter rather than a papal bull to the universal church, and therefore its teaching cannot be considered definitive doctrine. Likewise, defenders of the death penalty sometimes cite the sixteenth-century Catechism of the Council of Trent’s statement that “The power of life and death is permitted to certain civil magistrates because theirs is the responsibility under law to punish the guilty and protect the innocent. Far from being guilty of breaking this commandment [Thou shall not kill], such an execution of justice is precisely an act of obedience to it. For the purpose of the law is to protect and foster human life. This purpose is fulfilled when the legitimate authority of the State is exercised by taking the guilty lives of those who have taken innocent lives.” But catechisms themselves (including the more recent Catechism) are not magisterial documents, and their teachings only possess the magisterial authority of the documents from which those teachings come. More recently, in 1952 Pope Pius XII taught that “Even in the case of the death penalty the State does not dispose of the individual’s right to life. Rather public authority limits itself to depriving the offender of the good of life in expiation for his guilt, after he, through his crime, deprived himself of his own right to life.” But again, this statement was made in an address to physicians rather than in a doctrinal statement addressed to the universal church, and so its doctrinal authority has to be carefully considered. A careful study by theologians of both the doctrinal authority of statements defending the use of the death penalty and the precise meaning of such statements might reveal that the church’s teaching on the death penalty is less definitive than it may appear at first blush.
- The church does not have the authority to teach definitively on the death penalty.
Even if it were shown that statements from the Catholic tradition authorizing the use of the death penalty are not authoritative statements of definitive doctrine, one might still argue that their consistency over the centuries illustrates that this teaching is part of the ordinary magisterium of the church. A fourth argument offers a response to this claim, and is perhaps the most radical suggestion proposed in my two posts. What if the church does not have the authority to make a definitive doctrinal statement about the death penalty, one way or the other? Of course, the church has the authority to teach definitively on matters of “faith and morals,” proclaiming doctrines that require the assent of the faithful (e.g., Lumen Gentium #25). But the church’s tradition has also long affirmed that while morality has its foundation in certain universal truths about the human person, questions of morality become more contingent and uncertain the more particular and contextualized they are. The church’s teaching authority “extends as far as the deposit of Revelation extends” (ibid.), but one could make the case that certain contingent judgments about morality extend beyond what is contained in the deposit of Revelation, and therefore beyond the church’s authority to teach definitively, even if those judgments must be rooted in Revelation.
Let me refer to the work of Aquinas to help explain what I mean. Aquinas defines the natural law as the “natural inclination of [humankind] to its proper act and end” and “the rational creature’s participation in the eternal law.” He distinguishes, however, between the “general principles of the practical reason,” which are universal, and the “proper conclusions of the practical reason,” which are true in the majority of cases, but not all. He also refers to the latter as the “secondary principles” or “secondary precepts” of the natural law. Even after making this distinction between the general and secondary principles of the natural law, however, Aquinas argues that in some cases the natural law is in need of further determination or specification in order to adequately govern human affairs; this further determination is provided by human law. He claims that human law is derived from the natural law in two ways. First, the “law of nations” is derived from the natural law as conclusions from premises, and therefore these laws “have some force from the natural law.” Second, the “civil law” is derived from the natural law as “the determination of certain generalities.” Significantly, the example of the latter he offers is that “the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature,” and therefore a question of civil law. These different concepts are underdeveloped in Aquinas’s thought, and indeed his treatment of the law of nations is confusing and arguably contradictory (he is drawing on sources that treat the topic differently, and he does not completely reconcile them). Yet they illustrate that there are gradations in the moral law that are often neglected in modern Catholic discourse, but that ought to play a role in discussions on the development of church doctrine on the death penalty. Clearly the general principles of the natural law, and perhaps the secondary principles, fall within “the deposit of Revelation” about which the church can definitively teach, but conceivably the church’s teaching becomes less definitive when it touches on what Aquinas calls the law of nations and civil law because these matters involve a greater deal of contingency.
Applying this argument to the case of the death penalty, a survey of various past statements authorizing the death penalty would show that they affirm two underlying principles: 1) the governing authorities have the right to punish wrong-doers; 2) the governing authorities have the right to take life, particularly when it is necessary for the defense of the public. For example, in the letter mentioned earlier, Pope Innocent III cites Romans 13 to affirm that the governing authorities are ministers appointed by God to exercise vengeance against wrong-doers. And the passage from the Catechism of the Council of Trent cited earlier emphasizes that the purpose of the death penalty is to “protect and foster human life.” Is it possible that these two principles could be affirmed as principles of the natural law and definitive doctrines of the church, but that the conclusion drawn from them, that imposing death as a punishment for certain crimes is sometimes necessary for the defense of the public, is mistaken? Could church teaching on the death penalty be reversed while leaving the underlying doctrines that earlier statements were meant to maintain untouched?
Of course, this argument is a double-edged sword since it would mean that a teaching against the death penalty would also be non-definitive. Even so, it would demand the assent required of any non-definitive doctrine. And as Pope Francis suggests in his address, one could make the case that a development of this nature would represent growth in the church’s understanding of the dignity of the person revealed in and through Jesus Christ. It certainly seems that many areas where the church’s teaching has developed (religious freedom, human rights, slavery, marriage, etc.) represent a growing recognition of the importance of human dignity that needs to be explored in more depth by theologians.
The four arguments outlined here and in yesterday’s post are not necessarily mutually exclusive, and at least some of them might be combined into a cohesive argument for a more absolute prohibition of the death penalty in Catholic teaching.
Pope Francis’s call for a revision to the church’s teaching on the death penalty has exposed that our understanding of the development of doctrine is itself underdeveloped, particularly on questions of morality. I have raised these four arguments here not only to show how an apparent reversal in the church’s teaching on the death penalty might in fact by consistent with the church’s doctrine, but also to illustrate some of the considerations that have to be addressed if the church is to ponder a development along the lines raised by Pope Francis.
Thank you for these very good reflections. I fully agree that there is no definitive, infallible teaching of the Church affirming the legitimacy of the death penalty. I tried to explain my reasoning here:http://www.catholicworldreport.com/2017/11/10/is-there-really-a-definitive-teaching-of-the-church-on-capital-punishment/
I like the idea of specifying what needs to be condemned with regard to capital punishment. I think Pope Francis does this in his March 20, 2015 letter on the subject. What the Holy Father condemns is putting a person to death for a past crime when the person is no longer free and no longer poses a threat.
With regard to Pope Innocent I, it’s important to remember that he was asked in 405 about Christian public officials who administer torture or pronounce capital sentences. His appeal to Rom 13:4 would , therefore, apply to both torture and the death penalty. Innocent I was not making a definitive judgment because Pope Nicholas I in 866 told the Bulgarians that “neither divine nor human law” justifies such torture (Denz.-H, 648). Vatican II, in Gaudium et spes, 27 also condemned torture as being among the “infamies” that bring “supreme dishonor to the Creator.” Torture, though, was justified by Innocent I in the 5th century and later by Innocent IV in the 13th century. The Church, however, did not feel constrained by these prior judgments at Vatican II. Something similar, I believe, is happening now with capital punishment. I don’t believe it’s necessary to condemn the death penalty as intrinsically evil (even though such a condemnation is theoretically possible). It suffices, I think, for the Pope to use his ordinary magisterium to condemn the death penalty as gravely wrong when applied to a person who no longer poses a threat and whose crime was in the past. This already is the teaching of the ordinary papal magisterium because Pope Francis’s 2015 Letter is in the A.A.S. Moreover, Pope Francis, in Amoris laetitia, 83, teaches that the Church “firmly rejects the death penalty.” While certain specifications might still need to be developed, I think the teaching of the Church against the death penalty is now quite clear. Catholics should give religious assent to what Pope Francis teaches, viz., the death penalty is inadmissable when carried out on a person who is no longer free, who no longer poses a threat, and whose crime was in the past.
Thank you again for your postings.
Dr. Fastiggi,
Thanks for your comment. Regarding this:
This already is the teaching of the ordinary papal magisterium because Pope Francis’s 2015 Letter is in the A.A.S. Moreover, Pope Francis, in Amoris laetitia, 83, teaches that the Church “firmly rejects the death penalty.” While certain specifications might still need to be developed, I think the teaching of the Church against the death penalty is now quite clear. Catholics should give religious assent to what Pope Francis teaches, viz., the death penalty is inadmissable when carried out on a person who is no longer free, who no longer poses a threat, and whose crime was in the past.
Would you say that prior to Pope Francis’ teaching on the subject that Catholics did not have to give such religious assent? Given the Ratzinger memorandum in 2004 (echoed by the USCCB), it would seem that such a submission of intellect and will was *not* required then regarding this issue.
Also, if that is the case (i.e. it is this Pope’s magisterium that requires religious assent), then theoretically could the next pope teach reverse such a teaching?
Dear John,
Cardinal Ratzinger’s memorandum of 2004 must be understood within the context of Evangelium Vitae. 56 and the CCC, 2267. Religious assent to what is taught by these soures is assumed by Cardinal Ratzinger. I explain this a bit more in my Nov. 10, 2017 article in Catholic World Report (see passage below):
“The 2004 memorandum of Cardinal Ratzinger was on the subject of worthiness to receive Holy Communion and not on the death penalty per se. It was sent to Cardinal McCarrick as guidance for the USCCB. Its publication was due to a leak, and it does not appear on the Vatican website in the list of CDF documents or in the AAS. Prof. Feser and others have inflated the importance of this leaked memo, and they have misinterpreted it. The ‘legitimate diversity of opinion’ on applying the death penalty would need to be understood within the context of Evangelium Vitae, 56 and the CCC, 2267, which teach that recourse to the death penalty is licit if it “is the only possible way of effectively defending human lives against the unjust aggressor.” There might be a legitimate diversity of opinions over what might be the cases in which the death penalty is “the only possible way” of defending human lives. This is what Cardinal Ratzinger meant. He did not intend to give a carte-blanche for all opinions on the death penalty. The recent teachings of Pope Francis on capital punishment—which are already included in the AAS 106 [2014] 842–843 and the AAS 107 [2015], 362–365—carry more weight.”
Dr. Fastiggi,
Thanks very much for taking the time to reply. Regarding this: “There might be a legitimate diversity of opinions over what might be the cases in which the death penalty is “the only possible way” of defending human lives. This is what Cardinal Ratzinger meant. He did not intend to give a carte-blanche for all opinions on the death penalty.”
I understand that he did not intend to give carte-blanche for all opinions on the death penalty. However, I don’t see any compelling evidence for your reading over a broader reading.
You are saying that being “at odds with the Holy Father” and there being a “legitimate diversity of opinion about. . . applying the death penalty” *ONLY REFERS* to disagreement about whether a particular case constitutes “the only possible way” of defending human lives.
If you offer no additional evidence for this interpretation, then your reply here begs the question.
For there is another natural reading of Ratzinger’s memorandum which says the being “at odds with the Holy Father” and “legitimate diversity of opinion” applies to “the only possible way” criterion itself. It applies to what Bishops and the Pope have been teaching Catholics about the death penalty for the past decade leading up to his memorandum.
What are the reasons for accepting your reading over against Feser’s? Thanks for taking the time to reply.
Peace,
John D.
Dr. Shadle,
Thanks for an interesting couple of posts! Regarding this:
“The four arguments outlined here and in yesterday’s post are not necessarily mutually exclusive, and at least some of them might be combined into a cohesive argument for a more absolute prohibition of the death penalty in Catholic teaching.”
I think any “absolute prohibition” must avoid teaching that the death penalty is intrinsically evil. Because of that, the term “absolute” can be very misleading in this context. I know that’s not necessarily your personal position and that you are offering arguments for the sake of discussion.
One main reason the “intrinsically evil” label must be avoided is because of this argument:
1. God cannot positively command what is intrinsically evil.
2. God positively commands the Israelite to carry out the death penalty in the law of Moses.
3. The death penalty is not intrinsically evil.
*Positively command* is distinguished from permitting, regulating, and the like (as in the case of divorce).
That being said, even if it is not “absolutely prohibited” or “intrinsically evil”, that does not mean it *should* be used. That would take further argument, and those are arguments that (according to Dr. Fastiggi and others) Catholics may not currently be permitted to make.