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.

  1. 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.