The Church Could Teach That Capital Punishment Is Inherently Wrong

John Finnis
August 23, 2018
Reproduced with Permission
Public Discourse

Yesterday's essay argued that the Catechism's new section on capital punishment makes no substantive change in Catholic teaching. Nor did the 1997 amendment of that section. The 1992 Catechism did change traditional teaching on killing, whether in war, police actions, or judicial executions. That authoritative change, partly initiated by Pius XII, has sufficient theological warrants, but it is little understood and needs much more attention. Its logical conclusion is that capital punishment is inherently wrong. But that has not yet been taught.

Moral doctrine develops authentically by conceptual clarification, so that a correct but undifferentiated judgment (or set of judgments) develops into two correct moral judgments (or sets of judgments) on alternatives now more adequately differentiated. I will consider three such developments, two actual and one as yet hypothetical or, at most, in chrysalis. All three concern the reversal of a practice once, over a period of centuries, accepted by, among others, saints and popes and bishops generally, and in one way or another presented to the faithful as permissible.

Slavery. Apostolic and early Christians were content with the correct judgment that penal servitude (deprivation of liberty plus obligation of laboring) is a penalty not inherently unjust when accompanied by immunity from sexual exploitation and by freedom to worship and, if practicable, marry; and the further correct judgment that just confiscation can involve confiscation also of the rights of dependents. So the Church counselled those we would call slaves to work honestly and diligently for their masters, and reformed the institution without identifying, and therefore without challenging, its distinctive principle, which comes into view when its connection with guilt, punishment, and punitive confiscation is perceived to be over-extended to the point of sheer fiction in relation to the children of slaves, and to populations in newly discovered lands, and finally to virtually everyone reduced to the status of slave to private persons who bought and sold not simply their labor power but, realistically, their persons.

Clarification of these (and related) differences enabled the original correct judgments to be accompanied now by further correct judgments condemning slavery as distinct from penal servitude-for-defined-periods-of-time-in-state-prisons.

Denial of religious liberty. Again, the Church was long content with certain correct judgments, in this instance three: that no one can rightly be compelled to convert to the true faith; that error cannot be the basis of rights; and that state law can rightly suppress threats to public order (that is, to public peace, public morals, and/or the rights of other citizens), including threats arising from external acts putting into practice one or another tenet of mistaken religious belief. And the last-mentioned third correct judgment entails a fourth: that it is false to assert that everyone has a right to religious liberty - a liberty to give practical effect to whatever is the content of what they believe to be a true religious tenet.

But later that false assertion of religious liberty was differentiated from a different sense of religious liberty, one that can rightly be claimed to encapsulate a fifth correct judgment not only compatible with the other four but reasonably regarded as a true implication of the first: everyone has the moral right (not liberty, i.e. absence of a duty, but claim-right, i.e. a right correlative to others' duty to respect it) to be immune from coercion in pursuing the truth about religion, and putting it into practice as true (even if in fact mistaken) - unless such putting of a religious belief into practice would threaten the public order protected by the third of the Church's correct judgments.

And so we get the development of doctrine in Vatican II's document on "religious liberty" (there carefully defined, not as the false religious liberty incompatible with public order, nor as a "right to profess error," but as immunity from state or social coercion in relation to religious practices, within the limits of public order as defined above).

In that development, we should notice, nothing in the traditional teaching as such was reversed. What was reversed was a vast amount of practice that had been based on both an unawareness of the just-mentioned difference between senses of "religious liberty," and a factual (so-called "prudential") opinion that any and every religion that is false will constitute a threat to public order (including always the rights of others), if not by the falsity of one or other of its moral teachings then at least by inculcating disloyalty to any political community that officially or as a matter of predominant social practice adheres to the moral and other tenets of the true religion. And that now-rejected factual opinion/prediction could, with further historical experience, be modified or even reversed without reversing or even modifying either the first four traditional teachings, or the fifth teaching, articulated by Vatican II.

A Possible and Authentic Development of Church Teaching About Capital Punishment

Apostolic and early Christians lived mainly in a Roman world in which the imperial law rejected all idea of punishing by imprisonment, and in which at least the ruling classes regarded a death sentence as less severe than lifelong or even indefinitely lengthy detention in a magistrate's house. Early Christian teaching can reasonably be understood as including, at least implicitly, the following propositions: (1) the state's law and those officials who make and enforce the law can rightly, and indeed should, suppress by needful force, including lethal force, all substantial crimes, as infractions of public order (understood as above); (2) state punishment for crime is essentially retributive, for the sake of restoring, to the extent possible, the order of justice disturbed by the wrongdoing; the additional benefits of deterrence, incapacitation, and reform are welcome further effects, or at most fully subordinated rationales, not free-standing sufficient justifications for punishment; (3) punishment cannot be authentically retributive if it exceeds (even in pursuit of such further benefits) what is proportionate (commensurate) to the gravity of the offense and willfulness of the offender; (4) for the gravest kinds of offense, willfully committed, death is not disproportionate (does not exceed what is proportionate), and in that sense some crimes "deserve death."

Those propositions are compatible with a further proposition that has not, itself, been taught, though it is entailed, I argued yesterday, by CCC 2262-4 and 2307 and is thought by some - mistakenly, as I argued - to be the public meaning and effect of no. 2267/18. It is: (5) though not disproportionate or too severe, death is not a penalty that human beings can inflict without forming an intention precisely to terminate life - to replace it with death - an intention incompatible with God's lordship over life and death. In that highly restricted sense "no crime deserves death (at human hands intending to kill)," though some crimes deserve, at human hands, penalties that could be considered (as the Roman elites considered them) more severe than death. But it is generally better not to use the opaque, elusive, equivocal term "desert" in these contexts.

Misreading Scripture, Aquinas and the Tradition

In Public Discourse, as in his joint book, Edward Feser contended that the Church is irreversibly committed to teaching that states have "the right, in principle, to inflict the death penalty." To verify the moral truth of that teaching logically valid in form he stated an argument and challenged critics to identify which of its five premises they reject. The answer is this. Unsound (false) are certainly his third premise ("Some crimes are so grave that no punishment less than death would be proportionate in its severity") and, in its full extension, his fifth ("Public authorities have the right, in principle, to inflict on wrongdoers the punishments they deserve [including punishment requiring someone to execute them with intent precisely to kill them]").

Within 25 years of the resurrection, the apostles were led in the Spirit to announce the abrogation of the Mosaic legislation, including its innumerable precepts requiring the human imposition of capital punishment. Now these same apostles pointed Jewish and gentile Christians to numerous immoralities as deserving of death (loss first of earthly life, then also of eternal life): see e.g. Romans 1:24-32; Revelation 21:8. But in doing so, they proposed no program of state or other human punishments, whether required or discretionary. In retaining the moral commandments of the Decalogue as divinely confirmed natural (that is, rational) law (Romans 2:14-16), the Church appealed to the sanctions not of state law and penalties but of conscience now and divine judgment later. That is why Aquinas, seeking to hand on the whole Tradition, could welcome and adopt without qualification (ST I-II q 95 a. 2c) a key element in Aristotle's theory of state and law: state penalties should be proportionate to the offenses committed, but there is no natural - rationally required - measure, no fixed minimum for the gravest crimes, no rationally normative minimum-point or maximum-point, or set of such points (such as eye for eye, life for life), by which to cardinally calibrate the scale of deserts.

Aquinas seems to deny Feser's third premise, or at least to have no interest in affirming or supporting it. Indeed, the Summa Theologiae's set-piece defense of capital punishment, though doubtless presupposing legal and moral guilt, makes (pace Feser) no appeal - or even allusion - to what punitive measures desert (or retribution) requires.

Equally mistaken is Feser's claim that in Aquinas's argument for capital punishment, the comparison of criminals with brute beasts - that lack human dignity and so can be killed for human utility - is only secondary and subordinate. For that argument's first sentence sets up precisely that comparison, looking both back to the preceding article's defense of killing beasts for our utility, and forward to the rest of the article. The very next sentences argue that just as diseased parts (limbs) can rightly be amputated to save the body as a whole, so criminals can be executed to save the social whole. This embarrassingly flawed argument not only fails to attend to the profound difference between the political community's relation to the persons it serves and an organism's relation to its parts. It also fails to indicate why it would not also justify the killing of innocent citizens with intent that putting them to death save the state from, say, terrorists who demand such sacrifices, as one might amputate a healthy hand to save oneself from fire or water. Then, when replying to the objection that respect for human life is required by natural and Christian reason and rules out choosing to kill, Aquinas bluntly reverts to the brute beasts: a serious offender is like them - shares their servile status - because he has fallen away from the human dignity (= status) that is presupposed by the duty to respect human life.

Now rights can indeed be forfeited, and the justification and extent of such forfeitures is a matter laxly neglected today. But, as John Paul II says summarily, in italics, in EV 9: "Not even a murderer loses his personal dignity." Despite Aquinas's unequaled stature as a great teacher for us all, no authoritative pastors have proposed his theory of loss of human dignity to the universal Church, a theory out of keeping with Christian anthropology and with the Church's understanding of how persons stand to their communities and rulers.

Pius XII, in a drive-by sentence about capital punishment during a 1952 discourse to doctors on respect for life and dignity in biomedical research, ventured an argument vaguer than Aquinas's but comparably weak:

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.

He did not explain why "the guilty offender" (which? rapists? arsonists?) could not therefore be taken by bystanders, or public officials, for dismemberment or for organ harvesting, before or after being killed, by biomedical researchers for the common good.

Surely conscious, even (I suspect) as he spoke, of the argument's inadequacies, Pius XII - revisiting punishment and measures for appropriate penalty in extensive and ambitiously profound discourses to jurists in 1953 and 1954 - offered no support for capital punishment. Not that he questioned its legitimacy. But he certainly set in motion the key doctrinal development, by quietly repudiating the standardly deployed (e.g. Aquinas, Summa contra Gentiles III c. 146) New Testament support for capital punishment, Romans 13:4 ("if you do wrong, be afraid; it is not for nothing that [the ruler, the bearer of authority, the magistrate] bears the sword; he is God's minister for inflicting punishment [as [divine] wrath] on the wrongdoer"). About that passage Pius XII said on 5 December 1954 [AAS 47 (1955) 60-85 at 81]:

The words of the sources [Scripture] and of the living teaching authority do not refer to the specific content of individual juridical prescriptions or rules of action [fn.: cf. particularly Rom. 13:4], but rather to the essential foundation itself of penal power.

That means: do not read into Rom. 13:4 anything, one way or the other, about whether or not just human rulers, who have that divine authorization to rule that underpins all just state authority, are or are not authorized to use capital punishments: this text of sacred scripture is not speaking to that question, but is simply affirming that state rule justly extends to the imposition of grave, irreparable punishments (primarily, Pius soundly argues, to rectify retributively and proportionately deliberate criminality's inherent disordering of justice-relationships between members of the political community).

Without Romans 13:4 there remains no New Testament support for the notion that for some crimes death is the only human punishment that will do what proportionality demands. And the Old Testament support adduced for that notion by Feser is null. Read with the rest of the completed scriptures, Genesis 9:6 no more commands us (or even licenses us) to shed the blood of those who have shed human blood than Genesis 9:4 forbids us to eat any meat not drained of blood.

What Has the Church Definitively Taught About State Punishment?

The main way in which the Church's pastors teach morals definitively is not by papal definitions ex cathedra, nor by conciliar definitions. It is by the consensus of Catholic bishops throughout the world teaching - with, at some period, substantial unanimity, normally also articulated clearly by the Pope - that as a follower of Christ one is definitively not to choose some specific kind of behavior, whatever the circumstances (that is, however much one would be benefited or benefit others by choosing it), because such actions are contrary to natural reason made clearer and/or more certain by the revealed teachings that come to us from the apostles. There has never been such a teaching about capital punishment.

Still less has there been any teaching that capital punishment is sometimes required of a Christian legislator, judge, or other official or public person. Genesis 9:6 has never been proposed to Christians by the universal or ordinary magisterium as teaching that for some (if not all) murders only capital punishment would be a proportionate state punishment or satisfy the requirements of the retributive justice that human governments should administer. Nor has any other biblical text.

But has the universal magisterium definitively taught that capital punishment is a permissible state punishment? Obviously the Church's pastors have communicated by words and actions, very extensively, that it is, just as by words and actions over many centuries they communicated the thought that it is permissible for Christians to own slaves and for Christian states to deny to heretics or unbelievers liberty to practice their religion. But in those three massive bodies of practice and teaching concerning what is permissible, what has been definitive? That is the question that calls for discernment and clarification, a call to which the Church, its members largely entangled in the world, has responded gradually.

The highwater mark of the argument that capital punishment's permissibility has been definitively taught is the Waldensian oath of 1210. As a condition of the return to Catholic faith of Waldensians, heretics who repudiated, among other features of secular life, the taking of oaths, consumption of meat, and all shedding of human blood, Innocent III required them to repudiate these beliefs and to affirm "about secular power" that rulers who sentence with due care, deliberation, and good judgment and without hatred do not sin mortally when they "impose judgment of blood." The required assertion - the definition of what these Christians were required to hold definitively - concerns only the subjective (in)culpability of such sentences and executions. And those who composed the required affirmation obviously took for granted, as did Catholics generally until recently, that deliberate killing by public persons can certainly be morally justified. But the fact remains that the affirmation has exactly the same content as it might have had if the question posed, and/or the thought of its authors, had been the following: in relation to the permissibility of capital punishment, we do not yet know, with certainty, what the will of Christ and the precise demands of natural reason, fully adequately considered, actually are; but in the meantime, rulers and their spiritual advisers who believe it permissible do not mortally sin if they carry it out under the conditions mentioned in the affirmation (conditions about whose truth and moral necessity we are certain). Thus the papal proposing of the Waldensian oath fell short of teaching definitively the objective moral permissibility, in principle, of capital punishment.

Moreover, Innocent III with his talk of "judgment of blood," like Pius XII and pastors generally, shied away from identifying and facing up to the question whether those ordering or carrying out capital punishment - or indeed those engaged in lethal police or military acts - must (as a truth of rational psychology) be intending precisely to kill. So too, sometimes, did Aquinas, on the multiple occasions when he preferred to say, blurrily, that in legitimate defense and punishment alike, what is done is done with the intention "not of harming but of removing harms" (e.g. ST II-II q. 108 a. 2c). Common-law judges for centuries, somewhat similarly, have shied away from facing up to the question about which Aquinas was always clear, whether it is permissible for a private person to intend to kill when knowingly using lethal means without which he could not repel attack.

In short: it is, I believe, theologically mistaken to hold that the Catholic Church has definitively taught the permissibility of state capital punishment precisely as capital, that is, intended (because punitive, not sheerly defensive) to kill.

What it has definitively taught, on the basis of Scripture and reason, is the "meaning and judgment" (sensus et sententia) in the following pair of statements. Just state governments and laws have a moral liberty and duty, divinely authorized and confirmed, to defend the lives and other important elements of the common good of subjects by, if need be, means known by the user to be lethal. They equally have the divinely confirmed duty to administer punitive justice by means that, if proportionate to the offense and to the needs of defense, deterrence and retribution, irreparably impair the freedom, comfort, and civil rights of serious offenders against just state law - impairments and constraints that, when undergone by us short-lived creatures, are for us just as irreparable, humanly speaking, as imposing and undergoing death.

Back to the New Documents

For those who think they see theologically sound grounds for a development of doctrine - one that would teach that, by reason of its inherent intent to kill (that is, its having death as its object, its intention of death as a means), capital punishment is contrary to that respect for human life which is implicit in God's absolute lordship over life and death - the promulgation of CCC 2067/18, with its accompanying CDF explanation, is disconcerting.

By focusing all but exclusively on human dignity, as if it provided for our rights and duties not simply (as it does) an indispensable presupposition and ground, but rather a quasi-map identifying the sense and tracing the boundaries of those rights, this pair of documents arouses or reinforces, yet again, a serious misgiving. Is Christ's Church coming to heel behind atheist or pantheist secular globalist powers, and agendas, that it would do well to desist from flattering? Does the adoption of these new formulations, silent about the teaching's true sources (reverence for life, purity of intention, and divine lordship), prejudice the Church's own dignity and authority and, worse, the integrity of its doctrine and life?

For we should be under no illusions: the organs of the European Council, the United Nations, and the European Union, unconcerned to exclude from human society all intent to kill, and disdainful of God's lordship over life and death, are devoted to the opaque language of dignity. They deploy it constantly, bureaucratically, to promote their rejection of capital punishment but equally their indulgence towards euthanasia, suicide, and the many forms of anti-marital sex, and the radically unjust promotion of gender fluidity and same-sex parodies of marriage. And the educational institutions and programs they promote are nearly unanimous in denying or ignoring the justice of retribution, with its attention to the continuing and often justly decisive relevance of past deeds to present entitlement and conduct, attention and relevance essential to the truth of the Christian faith.

CCC 2267/18 does put out of sight one puzzling obscurity in CCC 2267/97, about how action taken solely for the sake of defense could be punitive in intent or in fact. But 2267/18 does so while ratifying and adopting (in relation to empirical conditions it treats with unwarrantable confidence as never to recur) the very line of thought that generates that puzzle.

And though the revision and commentary make, as I have argued, no change in teaching, they create at least an impression of change, and of change in a form that obscures the one line of development that would, it seems, be authentic. That impression is powerfully reinforced by the revision's preliminary, the Address of October 11, 2017, whose concluding words about capital punishment are incorporated into the new CCC 2267. For that address is replete with untethered calls for doctrinal progress, and with assurances about consistency with "past teaching" that all ring hollow, offering quasi-arguments that seem at best question-begging and more likely just incoherent and unserious. Behind such arguments, moreover, there becomes more and more evident an intent to smother key elements of the Church's most constant and apostolic understanding of its moral teachings, elements reaffirmed most weightily only twenty-five years ago in Veritatis Splendor.

Thus the main effects of the revision, given its ambiguities and, strictly speaking, unfruitfulness in doctrinal substance, seem likely to be these. Widely felt uncertainties about the Church's seaworthiness in faith and integrity of life will be exacerbated. And the faithful and their pastors will be distracted from attending to more urgent and weighty matters, above all the faith's foundation in that historical truthfulness of the Gospels which since the early 1960s has come to be denied by most of the teachers of scripture to the seminarians due to become our priests, bishops, and popes.