BY EDWARD FESER AND JOSEPH M. BESSETTE, SEPTEMBER 8, 2016
Pope St. John Paul II was well-known for his vigorous opposition to capital punishment. Yet in 2004, then-Cardinal Joseph Ratzinger—the pope’s own chief doctrinal officer, later to become Pope Benedict XVI—stated unambiguously that:
[I]f a Catholic were to be at odds with the Holy Father on the application of capital punishment … he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities … to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible … to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about … applying the death penalty … (Emphasis added)
How could it be “legitimate” for a Catholic to be “at odds with” the pope on such a matter? The answer is that the pope’s opposition to capital punishment was not a matter of binding doctrine, but merely an opinion which a Catholic must respectfully consider but not necessarily agree with. Cardinal Ratzinger could not possibly have said what he did otherwise. If it were mortally sinful for a Catholic to disagree with the pope about capital punishment, then he could not “present himself to receive Holy Communion.” If it were even venially sinful to disagree, then there could not be “a legitimate diversity of opinion even among Catholics.”
The fact is that it is the irreformable teaching of the Church that capital punishment can in principle be legitimate, not merely to ensure the physical safety of others when an offender poses an immediate danger (a case where even John Paul II was willing to allow for the death penalty), but even for purposes such as securing retributive justice and deterring serious crime. What is open to debate is merely whether recourse to the death penalty is in practice the best option given particular historical and cultural circumstances. That is a “prudential” matter about which popes have no special expertise.
We defend these claims in detail and at length in our book By Man Shall His Blood Be Shed: A Catholic Defense of the Death Penalty, forthcoming from Ignatius Press. What follows is a brief summary of some key points.
The Church holds that scripture is infallible, particularly when it teaches on matters of faith and morals. The First Vatican Council teaches that scripture must always be interpreted in the sense in which the Church has traditionally understood it, and in particular that it can never be interpreted in a sense contrary to the unanimous understanding of the Fathers of the Church.
Both the Old and New Testaments teach that capital punishment can be legitimate, and the Church has always interpreted them this way. For example, Genesis 9:6 famously states: “Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.” The Church has always understood this as a sanction of the death penalty. Even Christian Brugger, a prominent Catholic opponent of capital punishment, admits that attempts to reinterpret this passage are dubious and that the passage is a “problem” for views like his own.
St. Paul’s Letter to the Romans teaches that the state “does not bear the sword in vain [but] is the servant of God to execute his wrath on the wrongdoer” (13:4). The Church has always understood this too as a warrant for capital punishment, and by Brugger’s own admission, there was a “consensus” among the Fathers and medieval Doctors of the Church that the passage was to be understood in this way. But in that case, attempts to reinterpret the passage cannot possibly be reconciled with a Catholic understanding of scripture.
Not only Genesis 9:6 and Romans 13:4 but also passages like Numbers 35:33, Deuteronomy 19: 11-13, Luke 23:41, and Acts 25:11 all clearly regard capital punishment as legitimate when carried out simply for the purpose of securing retributive justice. The lex talionis (“law of retaliation”) of Exodus 21 and Leviticus 24 is also obviously a matter of exacting retribution for its own sake. Deuteronomy 19:19-21 talks of execution as a way of striking “fear” in potential offenders, and deterrence is clearly in view in Romans 13:4. Hence scripture clearly teaches that capital punishment can in principle be legitimate for the sake of deterrence.
The Fathers and Doctors of the Church
The Church has always regarded the Fathers as having an extremely high degree of authority when they are agreed on some matter of faith or morals. Now, some of the Fathers preferred mercy to the use of capital punishment. However, every one of the Fathers who commented on the subject nevertheless also allowed that capital punishment can in principle be legitimate. For example, in his Homilies on Leviticus, Origen teaches that “death which is inflicted as the penalty of sin is a purification of the sin itself.” Clement of Alexandria says that “when one falls into any incurable evil … it will be for his good if he is put to death.” In his commentary On the Sermon on the Mount, Augustine writes that “great and holy men … punished some sins with death … [by which] the living were struck with a salutary fear.” Jerome taught that “he who slays cruel men is not cruel.”
It is sometimes claimed that Tertullian and Lactantius were exceptions to the patristic consensus on capital punishment as legitimate at least in principle, but even Brugger admits that this is not in fact the case. And again, the Fathers also uniformly regarded scripture as allowing capital punishment, and the Church teaches that the Fathers must be followed where they agree on the interpretation of scripture.
Like scripture, the Fathers also speak of capital punishment as in principle legitimate for purposes like the securing of retributive justice and deterring others. (Indeed, neither scripture nor the Fathers refer to protection against immediate physical danger even as a purpose of capital punishment, let alone as the only legitimate purpose.)
The Church has also regarded the Doctors of the Church as having a very high degree of authority when they are agreed on some matter of faith or morals. Like the Fathers, these Doctors—including thinkers of the stature of St. Thomas Aquinas, St. Robert Bellarmine, and St. Alphonsus Ligouri—are all in agreement on the legitimacy in principle of capital punishment. Aquinas even dismissed as “frivolous” the suggestion that capital punishment removes from offenders the possibility of repentance, arguing that “if they are so stubborn that even at the point of death their heart does not draw back from evil, it is possible to make a highly probable judgment that they would never come away from evil to the right use of their powers” (Summa Contra Gentiles III.146).
No pope from St. Peter to Benedict XVI ever denied the legitimacy in principle of capital punishment, and many popes explicitly affirmed its legitimacy, even as a matter of basic Catholic orthodoxy. For example, Pope St. Innocent I taught that to deny the legitimacy of capital punishment would be to go against biblical authority, indeed “the authority of the Lord” himself. Pope Innocent III required adherents of the Waldensian heresy, as a condition for their reconciliation with the Church and proof of their orthodoxy, to affirm the legitimacy in principle of capital punishment. Pope St. Pius V promulgated the Roman Catechism, which states that:
Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. 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 1912 Catechism of Christian Doctrine issued by Pope St. Pius X says in the context of discussion of the Fifth Commandment: “It is lawful to kill … when carrying out by order of the Supreme Authority a sentence of death in punishment of a crime.” Pope Pius XII taught that “it is reserved … to the public authority to deprive the criminal of the benefit of life when already, by his crime, he has deprived himself of the right to live.”
It is sometimes alleged that while Pope John Paul II did not contradict past teaching, he did modify doctrine on capital punishment in a more restrictive direction in the catechism which he promulgated. In particular, it is claimed by some that John Paul taught that it is in principle immoral to resort to capital punishment except for the purpose of protecting others against the immediate physical danger posed by an offender. However, then-Cardinal Ratzinger explicitly denied that there was any change at the level of doctrinal principle. He affirmed that “the Holy Father has not altered the doctrinal principles which pertain to this issue” and that the revisions to the catechism reflected merely “circumstantial considerations … without any modification of the relevant doctrinal principles.”
Moreover, as Cardinal Avery Dulles has pointed out, had the pope made such a modification to doctrine, he would have been partially reversing or contradicting previous teaching rather than merely modifying it. For as we have noted, scripture and the Fathers teach that capital punishment can be legitimate specifically for purposes of retribution and deterrence, and not merely for the purpose of counteracting some immediate physical threat.
Like other recent popes, Pope Francis has opposed the use of the death penalty. But there are indications that, unlike any previous pope, Francis may be inclined to declare capital punishment intrinsically immoral. For example, in a recent statement, Pope Francis said that “the commandment ‘Thou shalt not kill’ has absolute value and applies both to the innocent and to the guilty” (emphasis added). It has also been reported that he has set up a commission to explore changing the Catechism of the Catholic Church so that it will “absolutely” forbid capital punishment.
Does Catholic doctrine permit a pope to make such a change? It very clearly does not. The First Vatican Council explicitly taught that:
[T]he Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles. (Emphasis added)
And the Second Vatican Council explicitly taught that:
[T]he task of authentically interpreting the word of God, whether written or handed on, has been entrusted exclusively to the living teaching office of the Church… This teaching office is not above the word of God, but serves it, teaching only what has been handed on… (Emphasis added)
If Pope Francis were to teach that capital punishment is “absolutely” immoral, he would be contradicting (rather than “religiously guard[ing],” “faithfully expound[ing],” and “hand[ing] on”) the teaching of scripture, the Fathers, and all previous popes, and substituting for it “some new doctrine.” He would be overruling the many scriptural passages that support capital punishment, thereby putting himself “above the word of God.” If he were to claim warrant for this novel teaching in the commandment against murder, he would be contradicting the way every previous pope who has addressed the subject has understood that commandment. As we have seen, Pope Pius XII teaches that the guilty person “has deprived himself of the right to live,” and the catechisms promulgated by Pope St. Pius V and Pope St. Pius X explicitly affirm that capital punishment is consistent with the commandment against murder.
Moreover, if Pope Francis were to teach that capital punishment is intrinsically immoral, he would undermine the authority of Catholic teaching in general. As Cardinal Dulles wrote:
The reversal of a doctrine as well established as the legitimacy of capital punishment would raise serious problems regarding the credibility of the magisterium. Consistency with Scripture and long-standing Catholic tradition is important for the grounding of many current teachings of the Catholic Church; for example, those regarding abortion, contraception, the permanence of marriage, and the ineligibility of women for priestly ordination. If the tradition on capital punishment had been reversed, serious questions would be raised regarding other doctrines…
Indeed, a change vis-à-vis the death penalty would undermine the pope’s own credibility as well. Cardinal Dulles continues:
If, in fact, the previous teaching had been discarded, doubt would be cast on the current teaching as well. It too would have to be seen as reversible, and in that case, as having no firm hold on people’s assent. The new doctrine, based on a recent insight, would be in competition with a magisterial teaching that has endured for two millennia—or even more, if one wishes to count the biblical testimonies. Would not some Catholics be justified in adhering to the earlier teaching on the ground that it has more solid warrant than the new? The faithful would be confronted with the dilemma of having to dissent either from past or from present magisterial teaching.
It is difficult to avoid the conclusion that, were Pope Francis to condemn capital punishment as intrinsically immoral, he would thereby be joining the ranks of that very small number of popes who have taught doctrinal error (which is possible when a pope does not speak ex cathedra).
However, we do not believe that Pope Francis will do this. For one thing, as is well known, the pope is prone in his public utterances to making imprecise and exaggerated statements. He has certainly done so before when speaking about capital punishment. For example, in a statement from March 15, 2015, the pope approvingly cited some lines he attributed to Dostoevsky, to the effect that “to kill one who killed is an incomparably greater punishment than the crime itself. Killing in virtue of a sentence is far worse than the killing committed by a criminal.”
Consider a serial killer like Ted Bundy, who murdered at least fourteen women. Bundy routinely raped and tortured his victims, and also mutilated, and even engaged in necrophilia with, some of their bodies. He was executed in the electric chair, a method of killing that takes only a few moments. Should we interpret the pope as seriously suggesting that Bundy’s execution was “far worse” and an “incomparably greater” crime than what Bundy himself did? Surely not; such a judgment would be manifestly absurd, and indeed, frankly obscene. Surely the pope did not intend to teach such a thing, but was rather merely indulging in a rhetorical flourish. A charitable interpretation of some of his other remarks about capital punishment would lead us to conclude that he does not intend to contradict the tradition.
For another thing, if the pope has indeed set up a commission to study revising the catechism, that in itself indicates that he wants to be careful not to contradict past teaching. Presumably, Cardinal Gerhard Müller, current prefect of the Congregation for the Doctrine of the Faith, would play a key role on such a commission. Commenting on the controversy the pope’s remarks on various subjects have sometimes generated, Cardinal Müller has noted that “Pope Francis is not a ‘professional theologian,’ but has been largely formed by his experiences in the field of the pastoral care.” Asked if he has sometimes had to correct the pope’s remarks from a doctrinal point of view, the cardinal replied: “That is what he [Pope Francis] has said already three or four times himself, publicly…” Cardinal Müller also emphasized that the pope himself “refers to the teaching of the Church as the framework of interpretation” for his various remarks. Furthermore, in an interview in Die Zeit, he was asked about Pope Francis’s sometimes doctrinally imprecise statements, Cardinal Müller acknowledged that churchmen sometimes “express themselves in a somewhat inappropriate, misleading or vague way,” and that not all papal pronouncements have the same binding nature.
Editor’s note: This essay first appeared July 17, 2016 in Catholic World Report as the first of a two part essay on capital punishment. Readers can read the second part here: http://www.catholicworldreport.com/Item/4939/why_the_death_penalty_is_still_necessary.aspx
For footnotes, see the original version. It is reprinted with permission.
By Edward Feser and Joseph M. Bessette
Edward Feser is Associate Professor of Philosophy at Pasadena City College. Joseph M. Bessette is Alice Tweed Tuohy Professor of Government and Ethics at Claremont McKenna College.