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Aug 4, 2018

Death Penalty Teaching: The Faithful Have Questions

Dr. Matthew Minerd

In light of the recent changes made to the Catechism of the Catholic Church regarding capital punishment, especially paragraph 2267,  there is a need to provide guidance to those who have questions regarding the meaning of this alteration.

Indeed, it is my opinion that full clarification was not provided by the explanatory letter released simultaneously with the changes by the Prefect of the Congregation of the Doctrine of the Faith, Cardinal Luis Ladaria.  Therefore Catholics are faced with the need to attempt a reverential interpretation of the changes, while also being willing to admit that there are open questions regarding the meaning of the textual alterations, which claim to be a legitimate development of the Church’s moral doctrine concerning capital punishment.

What is Development of Doctrine?

I do work translating from French and Latin, and occasionally, I run across the terms “évolution” in French and “evolutio” in Latin.  If it has been a long day translating, the English “evolution” almost flows off my fingers.  However, the authors whom I am translating (rather conservative Dominicans) do not mean “evolution” in the way we often use the word in English.  As we use it, the word conveys the idea of one species turning into another. Evolution, understood in this sense, denotes essential change.  

Hence, when these thinkers refer to evolutio, I render the term “development.” Many readers are likely familiar with Blessed John Henry Newman’s Essay on the Development of Christian Doctrine, written in the mid-nineteenth century. Even into the mid-twentieth century discussions about doctrinal development often threw up red flags regarding “modernism” and heretical tendencies. Many theologians were rightly concerned that an emphasis on development of doctrines would be subterfuge for importing the idea of the evolutionary change in doctrine. Pope St. Pius X’s encyclical Pascendi Dominici Gregis and Pope Pius XII’s encyclical Humani generis are two classic examples of the atmosphere in which these concerns were voiced with considerable urgency.

The Dominican Fr. Reginald Garrigou-Lagrange (1877-1964) was a famous theologian of this era. Although fondly known for his spiritual writings, he is also remembered with no small distaste because of his interactions with some proponents of the Nouvelle Théologie, an impressive group of theologians among whom were numbered many faithful Catholic authors including Henri de Lubac, Hans Urs von Balthasar, and Pope Benedict XVI.   Because of the controversies between himself and certain members of this so-called “nouvelle théologie,” it is often thought that Fr. Garrigou-Lagrange opposed any notion of doctrinal development.

However, throughout his works on theological methodology, he was not opposed to a correct understanding of the notion of “dogmatic development.” As he explained it, development is a lot like the development of a more definite idea from one that is less definite. Thus, I can start out by knowing in general that a fork is a utensil, only then coming to something like a definition: “A fork is a pronged utensil used for piercing food to be eaten.” A fork is still a utensil, but with our developed knowledge, we know more specifically just what it is.

I find this an eminently simple but direct way to think of doctrinal development. We should always ask, “How has this become more defined?”  An increase in clarity and definition does not entail change. Instead, it indicates a clearer delimitation and articulation of the boundaries of a given idea.

Bearing this in mind, let’s pass to the current problem at hand: the pope’s recent alteration to the Catechism.

From 1992 Catechism to Recent Statement

Drs. Edward Feser and Joseph Bessette, in their text By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, have shown in great detail that the constant teaching of the Catholic Church has defended the moral justness of the death penalty. Their study is detailed and deserves careful reading. We cannot reproduce its results here. Those who are interested can read the text, as well as the extensive number of semi-popular articles that they have written.

In particular, their work is very good in drawing attention to the fact that one can argue that capital punishment is justified not merely in terms of the protecting citizens from harm due to repeated offense, but also in terms of moral retribution. In other words, on their reading of the matter (which I tend to favor as a philosopher and which seems to be the constant teaching of Scripture, Tradition, the Church Fathers, the theological tradition of the Church’s masters, and most of the Magisterium until the past forty years), there are cases wherein it is morally good for the state to sanction the killing of certain criminals for the sake of the moral good of the society. We won’t be focusing on that claim. However, it represents the strongest justification for capital punishment. In any case, their text impressively argues that the defense of capital punishment as a positive moral good is part of the universal, ordinary teaching of the Catholic Magisterium.

Before turning to CCC 2267 in the 1992 Catechism, let us note several points from CCC 2266, which has not been altered.  Note in particular what I have italicized below:

“The State’s effort to contain the spread of behaviors injurious to human rights and the fundamental rules of civil coexistence corresponds to the requirement of watching over the common good. Legitimate public authority has the right and duty to inflict penalties commensurate with the gravity of the crime. The primary scope of the penalty is to redress the disorder caused by the offense. When his punishment is voluntarily accepted by the offender, it takes on the value of expiation. Moreover, punishment, in addition to preserving public order and the safety of persons, has a medicinal scope: as far as possible it should contribute to the correction of the offender.”

We will revisit these points below.

In the former text of CCC 2267 (which itself had been amended to include certain changes desired by Pope John Paul II), provision is made for the death penalty primarily in terms of protecting the lives of citizens. Thus, the text read:

“when this is the only practicable way to defend the lives of human beings effectively against the aggressor.”  

On the whole, this does not differ much from the Roman Catechism promulgated after the Council of Trent, though it arguably downplays the retributive aspect of capital punishment. Note, however, that the Tridentine text emphasizes another point (which is not denied by later teaching), namely that capital punishment is not merely an “acceptable action.” It is a positive moral good. Again, I will use italics for the sake of emphasis:

“The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence” (The Roman Catechism of Trent).

Is Capital Punishment a Moral Good?

However, between the Tridentine Catechism and the contemporary Catechism, there is a clear difference in general outlook. The earlier text draws to the foreground the fact that capital punishment is a moral good, an act of virtue on behalf of the civil authorities. It is not particularly concerned with the question of when someone should perform such an act. As is well known, the general trend in the 1992 Catechism is to refocus on the question of when such an act is permissible.

As an insightful student once said to me, “The general trend is to say that capital punishment is a morally good action but that nobody can any longer find a reason to do.”  I think that expresses the point well. (Perhaps, however, I would qualify that contemporary accounts seem to think that it is merely a “morally acceptable” action.)

The shift in focus is from the level of analyzing universal notions (what traditionally would be called “moral science”) to the level of personal moral reasoning (i.e., that of prudence trying to discern whether capital punishment is the course of action to be taken).  Thus, there really are two questions: (1) “Is capital punishment a moral good?”—“Yes”; (2) “How often should it be done in the developed world?”—“Rarely.”

The Recent Statement and Its Clarification

In the new text promulgated for CCC 2267, several points are made. The text opens by stating that for a long time the death penalty was considered an appropriate response to crime and a means to safeguard the common good.  It continues by stating that there is “an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes.” Likewise, it states that modernity has developed in its conception of civil penal sanctions.

In his explanatory letter, Cardinal Ladaria states that these sanctions should be oriented “above all to the rehabilitation and social reintegration of the criminal.” The change to CCC 2267 finally notes the existence of contemporary means of detention (presumably referring solely to the situation in developed nations).  

From all of this, the following conclusion is drawn:

“Consequently, the Church teaches, in the light of the Gospel, that the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,” and she works with determination for its abolition worldwide.”

What Is Meant by ‘Inadmissible’?

It is not entirely clear what level of analysis this conclusion belongs to. The text claims to teach “in light of the Gospel,” stating that the death penalty is “inadmissible” because of its character as “an attack on the inviolability and dignity of the person.” The text of the conclusion itself is taken from an address by Pope Francis in October 2017. The entire weight of the analysis comes crashing down on the term “inadmissible.” Is this word synonymous with “universally morally evil”? If so, we have a case in which the new definition is a rupture and not a clearer definition of the earlier truth.

The main point of reference we have is the human dignity cited in the conclusion. It seems that this notion is universal: the general condition of the human person as an intelligent and free creature, related to God by a unique, providential destiny. After reading and praying about this text, I see no other way to read it than as making this universal claim: “In itself (i.e., universally), the death penalty is morally wrong because it attacks the dignity of the human person.”  Faced with this conclusion, I see no way to justify the change, for it represents a rupture with what is arguably the position of the ordinary magisterium, namely: “Capital punishment (the death penalty) is a positive moral good.”

A Case of Loose Reasoning

Moreover, the reasoning offered before this raises several questions.  The first and most glaring one is the claim that the primary orientation for punishment should be the rehabilitation and reintegration of the criminal.  (This is hinted in the text itself and further specified in Cardinal Ladaria’s explanatory letter.) It is not clear to me how this notion can be squared with how punishment is expressed in CCC 2266:

“The primary scope of the penalty is to redress the disorder caused by the offense.”  

CCC 2266 presents penalties as being primarily “anchored” in retribution, whereas the quote from Evangelium Vitae in 2267 (in a superceded version of the text) seems to focus on protecting society from an unjust aggressor.  In his letter, Cardinal Ladaria focuses on this, seeming to draw the positive conclusion that this means that proportionate retribution plays no role. One can argue that this point was not clear in the Tridentine Catechism and that it was not clear in the superseded text drawn from Evangelium Vitae. However, an argument from silence is not much of an argument, especially for justifying what could be a rupture in teaching.

Secondly, the way of setting up the question (even when favorably read in light of Cardinal Ladaria’s letter) seems to say, “Once upon a time the death penalty was considered to be acceptable. Today, however, because of changed conditions, it is not.” Because of the confusion about the meaning of the ultimate conclusion drawn, it is not clear whether this should be interpreted on the level of “moral science” or of “prudence.”  Such clarity needs to be in the text from the beginning of it. Otherwise, it is not a teaching but, instead, loose reasoning.

Need for Clarity

While my concerns likely seem very abstract, I believe they are important. To my eyes, the only legitimate development would be to declare that in our current circumstances there no longer are prudential circumstances in which the performing of the death penalty is morally acceptable. Speaking primarily from a philosophical perspective, I believe that there actually is room for discussion on such matters. However, it does lie in the indirect power that the pope has over the civil order for him to offer such prudential directions.  Because there are other means for rectifying justice, he would not be asking us to do something necessarily evil by requiring this as a kind of “prudential teaching” that “developed” the previous one. We would be called to filial obedience (even if we also felt the need to address possible oversights in such a requirement).

However, I cannot in all honesty say that he is presenting the conclusion as being merely prudential. It seems that this change is being offered as a kind of doctrinal development (which in fact would be an alteration in something that is clearly part of the Ordinary Magisterium).  This is problematic to my eyes; and as a seminary professor, I personally feel that the Congregation for the Doctrine of the Faith needs to articulate what is meant with crystal clarity.  Such clarity may seem passé, but the human intellect feeds on truth and on the making of distinctions.

Need for Distinction

I suspect that one of the problems here is equivocation, the using of one word to mean multiple things. Too often, we use “capital punishment” (or, “death penalty”) to designate two very different moral actions. The state-sanctioned killing of someone is not necessarily morally good or evil. We need to make a distinction. There is such a thing as just killing by the state, just as there is such a thing as unjust killing by the state. Moral philosophers and moral theologians say that these are two different “moral objects.” The former is an act of the virtue of justice, the latter an act of the vice of injustice.

An analogous case can be found in self-defense. It’s not merely the circumstances that determine whether a case of self-defense is morally good or evil. Instead, there is a distinction between the use of proportionate means in physical self-defense and a disproportionate use of means in self-defense.  The circumstances help us to reflect and determine the goodness or wickedness of the act. However, in the end, the circumstances are not the whole story. Instead, the former is an act of justice to oneself (and, perhaps, to one’s family), whereas the latter is manslaughter (i.e., murder circumstantially mitigated because of factors such as fear, surprise, and so forth). The difference is morally immense—indeed, a difference of an act of virtue or an act of vice, a difference between a good act or an evil one.

A lot of good would be done if we recognized that the question is not merely one of circumstances but one of moral objects. This manner of analyzing moral acts is traditional in the Western Church and is universally part of the Church’s patrimony, especially through its place in the current Catechism. It is also a philosophically sane way of analyzing what is essential and what is not essential to an act.

Summary of Important Points

By way of summary, let me state the following:

  1. We should view the development of doctrine as a kind of passage from what is less defined to what is more defined. Former teaching does not pass away but instead finds further definition and clarity.

  2. The traditional teaching on capital punishment viewed it as being a positive good of justice as regards its moral object. This leaves unsaid particular points regarding the prudential circumstances wherein one can choose to do it.
  3. The 1992 Catechism, as well as the subsequent magisterium of St. John Paul II and Pope BenedictXVI, focus on the prudential circumstances. They generally desired the end of capital punishment.

  4. The recent changes seem to make more than a prudential claim, and this is difficult to harmonize with preceding doctrine.

  5. As things stand, these changes can be reverently accepted and understood with due deference offered to the teaching authority of the Church, especially as regards prudential guidance. However, I am personally of the opinion that those whose state of life place them in a position to ask for clarification (i.e., bishops, professors of moral theology and philosophy, and laity involved in communicating Church teaching) are bound in conscience to ask for further clarification if they discern that further clarity is needed. In my opinion, the articulation offered by the Congregation for the Doctrine of the Faith and the pope are insufficiently clear and call for greater philosophical and theological clarity.  An adult faith requires us to ask to be answered in a serious and clear way. However, it also requires us to avoid throwing a tantrum when asking the question.

Let us pray for the pope, the Roman Curia, and the Church.

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Matthew is professor of philosophy and moral theology at Ss. Cyril and Methodius Seminary, Pittsburgh, Pennsylvania. His writing has appeared in The American Catholic Philosophical Quarterly, Nova et Vetera, Homiletic and Pastoral Review, The Review of Metaphysics, Lex Naturalis, and The Downside Review, as well as in the proceedings for the American Maritain Association. He is also the translator of Reginald Garrigou-Lagrange’s The Sense of Mystery, published in 2017 by Emmaus Academic Press.