Eamonn Clark

Update: Dr. Feser presents a very similar argument here.

Currently, I am reading Dr. Ed Feser‘s recent book, By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment (co-authored by Joseph Bessette). It was with great interest then that I read the Holy Father’s remarks on October 11 regarding the death penalty in a conference celebrating the 25th anniversary of the publication of the Catechism of the Catholic Church.

I do not wish to summarize the entire history of this topic within Catholic and Western thought, as any curious reader would profit much more by simply picking up Dr. Feser’s book, but instead, I want to address (briefly) the possibility of a “development of doctrine” which would say that capital punishment is intrinsically evil.

But first, let’s look at what the Holy Father actually said.

“[The death penalty] is in itself contrary to the Gospel.”

“However serious the crime committed may have been, the death penalty is inadmissible because it undermines the inviolability and dignity of the person.”

“We are not in the presence of some contradiction with the teaching of the past, because the defense of the dignity of human life from the first moment of conception until natural death has always been found in the teaching of the Church.”

“The harmonious development of doctrine, however, requires that we [now] leave out arguments which now appear decisively contrary to the new understanding of Christian truth.”

“Unfortunately, this extreme and inhumane remedy was also used in the Pontifical State, neglecting the primacy of mercy over justice. We assume responsibility for the past, and we recognize that those means were guided by a mentality more legalistic than Christian.”

This is a startling series of quotations, for several reasons.

First, the Holy Father, probably without realizing it, is accusing many of his real predecessors of using an “extreme and inhumane remedy,” thus “neglecting the primacy of mercy over justice,” which implies they “were guided by a mentality more legalistic than Christian.” This would, of course, include some popes who have been raised to the altars, even men such as the great St. Pius V. It is unlikely that the Holy Father really meant to condemn several saintly popes as impenitent murderers (or as hopelessly bad moralists suffering from invincible ignorance of their material sins), but that is the implication nonetheless.

Second, the Holy Father’s comments display a startling lack of awareness of the rehabilitative power of capital punishment. In fact, this is one of the traditional arguments put forth in favor of the death penalty: to know that one is about to die in a short while is a great help in coming to repentance. What else could focus a man’s mind more on the good of his soul? If imminent and certain death does not bring about repentance, we can be pretty sure that nothing will. Furthermore, while such criminals are locked up, how many more people might they kill, heaping even more sin onto their souls? For an example of the power the certainty of death has for occasioning conversion, one might look to the ministry of St. Joseph Cafasso, who turned several dozen men from hardened criminals petrified of death into virtuous souls equally resigned to live or die, sometimes hours before they were to be hanged… (St. Catherine of Siena and St. Vincent Palotti are other examples.) It was, in fact, the certain imminence of their deaths that softened them for the work of their chaplain-saint. Surely, they would have done much good in the world had they been set free, but then again, if such were done then there would no longer be a real threat of certain death in these cases (rendering the rehabilitation less likely), nor is this how justice works… It is unsuitable as a jurisprudential norm to allow men to walk free without facing their sentence simply because they appear to have become reformed (unless reform is conditionally a part of their sentence). Instead, converted inmates will make great citizens of the Kingdom which is not of this world – lest we forget, doing well in this life is not the ultimate point, as earthly life is not the greatest good. Human life is not entirely destroyed by bodily death. This must not be an afterthought in the discussion of capital punishment, as it is precisely the supernatural call to Beatitude which gives human life so much dignity even beyond our merely natural goodness as creatures.

Third, and most importantly, the Church has taught perennially, building upon the teaching of the Old Testament (in God’s own legislation) and the New Testament, and upon the timeless understanding of natural law that there is no injustice in a legitimate government administering capital punishment under certain circumstances, namely, the crime must really be proportionate with the penalty of death, and there is moral certitude (following due process) that this individual really committed such a crime. (We might also add other factors, such as avoiding doing more harm than good, or having suitable means of execution, but this will suffice for an exploration for now.) However, apparently, we now have “a new understanding of Christian truth” which can allow a development of doctrine that completely relegates capital punishment to the realm of intrinsic evils.

I suggest that this is absolutely impossible.

First of all, such a change would be abrupt. This is not how authentic developments occur, at least outside the context of an ecumenical council where a whole number of matters might be settled with uncharacteristic promptness. Rather, they naturally unfold over a long period of time. One might argue that the past two pontificates somewhat softened the attitude toward capital punishment, which is true, but 35 years is an unimpressive tenure for a doctrinal shift. A counterexample might be the teaching on lending at interest, which changed as slowly as its object changed (viz. the instrumental scope of currency). Another might be the Immaculate Conception, celebrated in the Church for centuries before slowly making its way into the universities for debate and finally, after several more centuries, onto the loggia of Bl. Pope Pius IX. More examples could be provided, especially in the field of bioethics. What makes an abupt change to be such a red flag is that the Church does not suddenly come up with ideas about doctrine; rather, the doctrine is there from the beginning and it is slowly unpacked by the faithful. This takes a long time.

With that, the second problem with this change would be that it finds no meaningful support in the Catholic moral tradition. As attentive readers of Prof. Feser’s book will see, the opposite is true – the Church teaches and has always taught that the death penalty is legitimate in principle because of its proportionality to certain crimes, among other reasons. This is especially true for St. Thomas, upon whose arguments much of the modern defense rests. What recent popes have done is little more than advise a restricted use of it, in keeping with their own prudential judgments about its efficacy and usefulness within a broader social context (and Cdl. Ratzinger reminded us that one may disagree with popes on this point). One might point out that the paragraphs in the Catechism which discuss the death penalty seem to insist on its use only when necessary for protecting others; while this is what the document says, (especially when it quotes Evangelium Vitae,) it does not discuss why on the level of principles of justice, only on the level of prudential judgments about “the common good” and how to be “more in conformity with the dignity of the human person” – presumably, only the person of the criminal… The dignity of the person or persons killed is not discussed, and such a counterweight must be included in such an examination of distributing proportionate punishment, as the CCC says in the paragraph immediately preceding. (See also the Roman Catechism on this point, issued by Pope St. Pius V and re-issued by Pope St. Pius X.) Also, for what it’s worth, John Paul II beatified a certain Pope Pius IX. Certainly, the former knew of the latter’s firm support and use of capital punishment…  We ought to conclude then, in keeping with the hermeneutic of continuity, that John Paul II meant only to advise such a use of capital punishment in accord with the teaching which preceded it – that capital punishment may be warranted even without the need for protecting others (which is not strictly denied by the CCC) – and thus it is only a prudential judgment about its use, rather than a denial of the justice of its use in circumstances which do not necessitate its use for the protection of others, that we find in EV and the CCC. (We should also remember that catechisms, while certainly important, are not infallible documents, as Cdl. Ratzinger himself pointed out after the CCC’s publication!)

The third and most important item to discuss is the obvious one: such a change would actually constitute a reversal of past teaching, despite the Holy Father’s words that this is untrue. The Church has certainly grown in its understanding of human dignity in various ways throughout the ages, but there can be no realization about human dignity that would render capital punishment illicit. This would theoretically be possible if the Church had never actually formulated a teaching in favor of capital punishment, instead merely tolerating its use without meaningful comment. But since this is not the case, there can be no such change. Some people might be confused by this… Let’s consider another example. Suppose Pope Benedict XVII in the year 2078 decides, “The Church has evolved in Her understanding of the dignity and power of Baptism to the point where we realize that there is really no need for Confession.” One might very easily map the words of Pope Francis onto the same idea of this fictional Benedict XVII – mercy, legalism, development, apology, etc. Since this is a development of the doctrine on Baptism, how could it contradict anything but past doctrines on Baptism? The reason is very simple: doctrines do not live in bubbles. They must fit together with all other authentic doctrines. If a new doctrine on Baptism implies a contradiction of the doctrine on Confession, then the new doctrine on Baptism is wrong. If a new doctrine on human dignity implies a contradiction of the doctrine on capital punishment, then the new doctrine on human dignity is wrong. We do have a doctrine on capital punishment, as Dr. Feser shows brilliantly in his book, and the attempt to raise human dignity to such a point as it becomes absolutely inviolable would indeed imply a contradiction of that doctrine and thus would be erroneous. It would also imply that God legislated immorality in the Old Testament (ex. Leviticus 20:10) and that St. Paul confirmed immorality in the New Testament (Romans 13:4).

It will be very interesting to see how all this unfolds, or if anything even happens at all.

It is perhaps more important than ever to be training dogmaticians and moralists… Let’s pray and fast, too.

Stay tuned… and be sure to subscribe!

Our Lady of Fatima, pray for us!

Main image: Portait of Pius V, pope; El Greco, c. 1600-1610 (oil on canvas)