Editor’s note: In recent years, the Church’s teaching on the death penalty has been a topic of much debate among Catholics, especially in the United States where the practice is still legal. In this essay, “Capital Punishment and Magisterial Authority,” theologian Dr. Robert Fastiggi examines the development of the Catholic Church’s position on the issue, particularly in light of Pope Francis’s 2018 revision to the Catechism of the Catholic Church. Many Catholic scholars and commentators have debated the proper interpretation of this teaching and its doctrinal weight. Some have even questioned its orthodoxy. In this essay, Dr. Fastiggi provides a comprehensive response to the criticisms and contradictory interpretations of the revised teaching and gives a thorough analysis of this teaching in light of Catholic doctrine, scripture, tradition, and magisterium.

Click here for Part 2. Click here for Part 3.

This essay will be published on consecutive days in four parts on Where Peter Is, beginning today and concluding on Thursday, August 17. — ML

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“Consequently, the Church teaches”

August 2 of this year marked the fifth anniversary of the decision by Pope Francis to revise no. 2267 of the Catechism of the Catholic Church [CCC] on the death penalty. As is well-known no. 2267 now concludes by saying:

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” [Pope Francis, Address to Participants in the Meeting organized by the Pontifical Council for the Promotion of the New Evangelization, 11 October 2017] and she works with determination for its abolition worldwide.

When I read the rescript of Pope Francis mandating the change in no. 2267 of the CCC and the accompanying letter to the bishops by the Congregation for the Doctrine of the Faith [CDF], I experienced a great sense of joy and gratitude. I was so happy that the Roman Pontiff and the Congregation for the Doctrine of the Faith clarified the teaching of the Church on the death penalty. I thought that this authoritative judgment would resolve various debates that had been going on for decades in some Catholic circles. I remember in the early 2000s having some lively discussions with a former colleague—a very bright and committed Thomist—who believed Pope John Paul II went too far in his revision of the CCC in 1997 on the death penalty. This prompted me to write an article in 2005 entitled “Capital Punishment, the Magisterium, and Religious Assent,” in which I argued, following Lumen Gentium, 25, of Vatican II that Catholics must give religious assent to what John Paul II taught about capital punishment in Evangelium Vitae, 56 and the CCC as revised in 1997.

When Pope Francis began to speak out strongly against the death penalty, Catholic defenders of the death penalty began to argue that he was going against Scripture and tradition. Catholics defending capital punishment found support in the book co-authored by Dr. Edward Feser and Dr. Joseph M. Bessette entitled By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment (Ignatius Press, 2017). Resistance to Feser and Bessette came from Dr. E. Christian Brugger, the author of Capital Punishment and Roman Catholic Moral Tradition Second Edition (University of Notre Dame Press, 2014). I also posted two articles in the Catholic World Report during the autumn of 2017, one focusing on Feser’s use of Scripture and the Magisterium and the second trying to respond to the main questions related to the issue. The main question under dispute seemed to be whether the Church already has a definitive teaching on capital punishment such that the Magisterium can never declare the use of the death penalty to be in itself immoral.

As someone who’s been teaching in Catholic higher education since 1985, I appreciate lively discussions and even disputes on controversial topics. The question from a Catholic perspective, though, is who has the authority to resolve the dispute? The answer, of course, is the Magisterium, which consists of the Catholic bishops in communion with the successor of Peter. The Roman Pontiff, as the Council of Florence defined in 1439, possesses “the full power of feeding, ruling, and governing the whole Church, as is contained in the acts of ecumenical councils and the sacred canons” (Denz.-H, 1307). Vatican I anathematized those who denied that the Roman Pontiff lacked “the full and supreme power of jurisdiction over the whole Church, not only in matters that pertain to faith and morals, but also in matters that pertain to the discipline and government of the Church throughout the whole world” (Denz.-H., 3064). This universal teaching authority of the Pope applies not only when he is speaking ex cathedra but also in his ordinary papal Magisterium. Pope Pius XII makes this clear in his 1950 encyclical Humani Generis, 20:

Nor must it be thought that what is expounded in Encyclical Letters does not of itself demand consent, since in writing such Letters the Popes do not exercise the supreme power of their Teaching Authority. For these matters are taught with the ordinary teaching authority, of which it is true to say: “He who hears you, hears me” [Luke 10:16], and generally what is expounded and inculcated in Encyclical Letters already for other reasons appertains to Catholic doctrine. But if the Supreme Pontiffs in their official documents purposely pass judgment on a matter up to that time under dispute, it is obvious that that matter, according to the mind and will of the Pontiffs, cannot be any longer considered a question open to discussion among theologians.[1]

What Pius XII teaches in Humani Generis, 20 has been reaffirmed in Lumen Gentium, 25, canon 752 of the 1983 Code of Canon Law [CIC], and the 1989 Profession of Faith. In light of these authoritative documents, I assumed that the Catholic supporters of capital punishment would adjust their position and manifest the religious submission of will and intellect required by Lumen Gentium, 25 and canon 752 to the Roman Pontiff’s decision to revise no. 2267 of the CCC. In the weeks that followed August 2, 2018, I realized that I was somewhat naïve. The Catholic supporters of the death penalty began writing articles saying they are right and the pope is wrong on capital punishment. The titles of some of these articles unfortunately manifested disrespect towards the Holy Father. One article referred to the “junk theology” of Pope Francis. Another spoke of “magisterial irresponsibility.” Still another referred to the Holy Father’s “comments”—not teaching—on the death penalty as “incoherent and dangerous.” One theologian, Dr. John Joy, wrote an article that comes across as scholarly and intelligent. Dr. Joy, however, claims that Catholics have no obligation to give assent to what Pope Francis teaches on the death penalty just as children have no obligation to obey their parents if they violate the law of God:

The duty of religious submission to the authentic teaching of the Holy Father, therefore, is very much like the duty of children to obey their parents. Just as children have a duty to obey their parents in all things unless their parents command them to violate the law of God, so too Catholics have a duty to assent to all things taught by the authentic papal magisterium unless the pope should teach something contrary to a truth revealed by God himself or infallibly taught by the Church as pertaining to divine revelation.

The very issue in question, though, is whether the legitimacy of the death penalty is a truth revealed by God that the Church must always affirm. Dr. Joy is only expressing his opinion on the matter, which is not sufficient to establish a teaching as infallible.

The appeal to the Cardinals to correct Pope Francis

On August 15, 2018, less than two weeks after the August 2, 2018 change to the Catechism, a group of Catholic scholars and clergy issued an open appeal to the Cardinals of the Catholic Church calling upon them to intervene to correct Pope Francis. Within a few days the number of those endorsing the appeal had grown to 75. The signers justified their appeal on the basis of canon 212 §3 of the 1983 CIC, which states:

According to the knowledge, competence, and prestige which they possess, they have the right and even at times the duty to manifest to the sacred pastors their opinion on matters which pertain to the good of the Church and to make their opinion known to the rest of the Christian faithful, without prejudice to the integrity of faith and morals, with reverence toward their pastors, and attentive to common advantage and the dignity of persons.

The signatories, of course, have the right to make known their opinion, but I wonder whether writing to the Cardinals to correct the Pope really manifests reverence towards the Holy Father and his teaching authority. The appeal speaks of the “gravely scandalous situation” created by the decision of Pope Francis. It is one thing to express difficulties with a teaching; it is something else to refer to a papal teaching as “gravely scandalous.” I suppose the signatories would respond by saying that this is their honest opinion.

The appeal also cites a response of St. Thomas Aquinas to an objection found in the Summa Theologiae II-II, q. 33, a. 4, ad 2:

If the faith were endangered, a subject ought to rebuke his prelate even publicly. Hence Paul, who was Peter’s subject, rebuked him in public, on account of the imminent danger of scandal concerning faith, and, as the gloss of Augustine says on Galatians 2:11, “Peter gave an example to superiors, that if at any time they should happen to stray from the straight path, they should not disdain to be reproved by their subjects.”

This passage of Aquinas is widely used by papal critics to justify any resistance to the Pope, his teachings, and decisions. They forget that Paul’s correction of Peter had to do with Peter’s behavior not his teaching. In addition, as Ron Conte Jr. correctly notes, this particular question of the Summa concerns fraternal correction in general. It is not focused on the correction of popes. When read in its full context (and in light of other teachings of Aquinas), it does not justify the type of resistance to papal teachings found in so many critics today. Moreover, what Aquinas says in this passage is offset by Pope Gregory XI’s 1377 censure of various errors of John Wycliffe. Among these censured errors, number 19 reads:

An ecclesiastic, even the Roman Pontiff, can legitimately be corrected, and even accused, by subjects and lay persons (Denz.-H, 1139).

Canon 212 §3 of the 1983 CIC allows for manifesting opinions. It’s questionable whether it envisions scholars and clerics accusing the Roman Pontiff of contradicting the Word of God. Be that as it may, it’s important to examine the arguments made in the appeal, which are manifested in these two paragraphs:

Though no Catholic is obliged to support the use of the death penalty in practice (and not all of the undersigned do support its use), to teach that capital punishment is always and intrinsically evil would contradict Scripture. That the death penalty can be a legitimate means of securing retributive justice is affirmed in Genesis 9:6 and many other biblical texts, and the Church holds that Scripture cannot teach moral error. The legitimacy in principle of capital punishment is also the consistent teaching of the magisterium for two millennia. To contradict Scripture and tradition on this point would cast doubt on the credibility of the magisterium in general. …

Since it is a truth contained in the Word of God, and taught by the ordinary and universal magisterium of the Catholic Church, that criminals may lawfully be put to death by the civil power when this is necessary to preserve just order in civil society, and since the present Roman pontiff has now more than once publicly manifested his refusal to teach this doctrine, and has rather brought great confusion upon the Church by seeming to contradict it, and by inserting into the Catechism of the Catholic Church a paragraph which will cause and is already causing many people, both believers and non-believers, to suppose that the Church considers, contrary to the Word of God, that capital punishment is intrinsically evil, we hereby call upon Your Eminences to advise His Holiness that it is his duty to put an end to this scandal, to withdraw this paragraph from the Catechism, and to teach the word of God unadulterated; and we venture to state our conviction that this is a duty seriously binding upon yourselves, before God and before the Church.

I know some of the signatories to this open appeal, and I do not doubt their sincerity. I question, though, some of their assumptions and methods. To me, the major question is one of authority.

Who has the authority to interpret Scripture?

The truths of Scripture and tradition are certainly essential, but who has the authority to determine the context, meaning, and ongoing applicability of Scripture? It is the Magisterium of the Church not a group of scholars and clerics. The Council of Trent teaches that it belongs to Holy Mother the Church “to judge the true meaning and interpretation of Scripture—and that no one may dare to interpret the Scripture in a way contrary to the unanimous consensus of the Fathers, even if such interpretations are not intended for publication … .” (Denz.-H 1507). The signers of the appeal no doubt will claim that the unanimous consensus of the Fathers is that the death penalty is legitimate. This position, though, has been rejected by Pope Francis in his October 3, 2020 encyclical, Fratelli Tutti, no. 265, when he correctly notes: “From the earliest centuries of the Church, some were clearly opposed to capital punishment,” and he cites Lactantius (240–320), Pope Nicholas I (c. 820–867), and Augustine (354–430) as examples. The Orthodox Patristic scholar, David Bentley Hart, has likewise challenged Feser and Bessette’s interpretation of the Church Fathers on the death penalty.

With regard to Scripture, the signers of the appeal cite Genesis 9:6, but it’s worth noting that Feser and Bessette do not cite a single papal invocation of this Scripture in support of capital punishment. Moreover, this Scripture—“whoever sheds the blood of man, by man shall his blood be shed”—can actually be used against the death penalty since the death penalty involves killing. In fact, Benedict XVI, in his 2012 Post-Synodal Exhortation, Ecclesia in Medio Oriente, n. 26 cites Genesis 9:6 as evidence that God forbids the killing of even those who commit murder: “God wants life, not death. He forbids all killing, even of those who kill (cf. Gen 4:15-16; 9:5-6; Ex 20:13).”[2] In Fratelli Tutti, 270, Pope Francis cites Gen 9:6 in his section against the death penalty for this Scripture stands as a warning to “those tempted to yield to violence in any form.”

The signers to the appeal claim that “the Church holds that Scripture cannot teach moral error.” They forget, though, that the Church recognizes that the books of the Old Testament contain some things that “are incomplete and temporary” (Vatican II, Dei Verbum, 15). St. Thomas Aquinas also distinguished the precepts of the Old Law as moral, ceremonial, and judicial (ST I-II, q. 99, a. 5). Although the moral law (e.g. the Decalogue) is permanent, the ceremonial laws no longer apply, and the judicial laws, as time-bound ordinances for the ancient Israelites, do not bind forever (ST I-II, q. 104, a. 3). The Old Testament allows for slaves purchased from aliens to be owned as property or chattel (Lev 25:45). In 2 Sam 12:8, God tells David: “I gave you your lord’s house and your lord’s wives as your own.” The Council of Trent, in canon 2 of its Doctrine on Marriage, however, anathematizes those who say it is lawful “for Christians to have several wives at the same time” (Denz.-H, 1802). Yes, the Old Testament does call for executions, but Jewish scholars and rabbis were later reluctant to sanction the death penalty. Rabbi Elizar ben Ashariah (c. 100 A.D.) said a council “is to be called murderous if it carries out an execution once in seventy years.”[3] According to L.I. Rabinowitz, “the whole tendency of the rabbis was toward the complete abolition of the death penalty.”[4]

In the New Testament, there does not seem to be any explicit support for capital punishment as a practice that must always be allowed. Yes, Jesus, in the parable of the Tenants, speaks about the owner of the vineyard putting to death those who kill his son (Mt 21:33–41, Lk 20: 9–14, Mk 12:1–12), but Jesus is providing a parable that conforms to the cultural norms of the day. When Jesus directly confronts the case of an adulterous woman—who should be executed according to the Mosaic Law—He says: “Let the one among you who is without sin, be the first to cast a stone at her” (Jn 8:7). This recognition of sin provides an argument against executions. Jesus also teaches that we should love our enemies and pray for those who persecute us (cf. Mt 5:44). In light of this passage, Pope Francis teaches that the death penalty “directly concerns the denial of the love for enemies preached by the Gospel.”[5] Do we love our enemies by intentionally killing them?

I know supporters of capital punishment love to cite Rom 13:4, which says that the civil authority “does not bear the sword without purpose.” This passage, though, only supports the penal power of the State. It does not directly endorse executions. In his Feb. 5, 1955 “Address to the Italian Association of Catholic Jurists,” Pius XII cites Rom 13:4, but he does not see it as directly endorsing capital punishment. Instead, he says that this text and other sources “do not refer to the concrete contents of individual juridical prescriptions or rules of actions, but to the essential foundation itself of penal power and its immanent finality’ (non si riferiscono al contenuto concreto di singole prescrizioni giuridiche o regole di azione ma al fondamento stesso essenziale della potestà penale e della sua immanente finalità) [AAS 47 (1955), 81].

The signers of the appeal to the Cardinals are worried that the change to the Catechism could give the impression “that the Church considers, contrary to the Word of God, that capital punishment is intrinsically evil.” The Old Testament, though, allowed for the ownership of slaves, but the Church now recognizes slavery as intrinsically evil (cf. Vatican II, Gaudium et Spes, 27 and John Paul II, Veritatis Splendor, 80). The Old Testament not only tolerated polygamy, but it shows God enabling it in 2 Sam 12:8. The signers do not seem to realize that the Magisterium of the Church can forbid something that is not intrinsically evil.[6] If polygamy was allowed in the Old Testament, can it be said to be intrinsically evil? St. Thomas Aquinas taught that a man having several wives was not against the natural law with regard to the good of offspring, but it was against the goods of fidelity and sacrament (ST Suppl, q. 65, a. 1). The Council of Trent, as we have seen, anathematized those who said it was lawful for Christians to have several wives at the same time (Denz.-H, 1802). Trent teaches that polygamy is prohibited by divine law even though it was tolerated in the Old Testament. Just as there is a development of doctrine in Catholic theology so there is development and maturation in the revelation of God’s law in Scripture. In the CDF’s 2018 letter to the bishops explaining the revision of CCC, 2267, this important point is made in footnote 12:

In reference to the death penalty, treating the stipulations of the precepts of the Decalogue, the Pontifical Biblical Commission spoke of the “refinement” of the moral positions of the Church: “In the course of history and of the development of civilization, the Church too, meditating on the Scriptures, has refined her moral stance on the death penalty and on war, which is now becoming more and more absolute. Underlying this stance, which may seem radical, is the same anthropological basis, the fundamental dignity of the human person, created in the image of God.” (The Bible and Morality: Biblical Roots of Christian Conduct, 2008, n. 98).

The signers of the appeal to the Cardinals accuse Pope Francis of contradicting Sacred Scripture. This accusation, though, is based on an inadequate understanding of how the Church develops and refines her moral positions in light of a deeper understanding of the Bible. The signers also fail to understand that they are placing their interpretation of the Word of God above that of the Roman Pontiff and the Magisterium. Vatican II, in Dei Verbum, 12, teaches that the interpretation of Scripture “is subject finally to the judgment of the Church, which carries out the divine commission and ministry of guarding and interpreting the word of God.” In CCC, 2267, we now read: “Consequently, the Church teaches, in the light of the Gospel (Ecclesia, sub Evangelii luce, docet), 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.” The Church teaches that the death penalty is inadmissible “in light of the Gospel.” Do the signers of the appeal believe the Church has the authority to interpret the light of the Gospel or do they not? If they believe that their authority to interpret the Bible is superior to that of the Church, they are contradicting the teachings of the Council of Trent (Denz.-H, 1507) and Vatican II (Dei Verbum, 12).

Click here for Part 2. Click here for Part 3 of this essay.

Notes

[1] It is ironic that Feser and Bessette cite this passage of Humani Generis on p. 141 of their book. It seems, though, that they accept the authority of the ordinary papal Magisterium when the teachings come from Pius XII but not when they come from Pope Francis.

[2] I am aware that the original French reads: “Dieu veut la vie, non la mort. Il interdit le meurtre, même celui du meurtrier (cf. Gn 4, 15-16 ; 9, 5-6 ; Ex 20, 13).” The most obvious meaning of meurtre is “murder.” But if God wants life not death, He does not wish the death of even a murderer.

[3] Clemens Thoma, “The Death Penalty and Torture in the Jewish Tradition” in The Death Penalty and Torture, eds. Frank Böckle and Jacques Pohier (New York The Seabury Press, 1979), 66.

[4] Cited in ibid.

[5] Pope Francis, Letter to the President of the International Commission against the Death Penalty (March 20, 2015): https://www.vatican.va/content/francesco/en/letters/2015/documents/papa-francesco_20150320_lettera-pena-morte.html.

[6] See the excellent article by Anthony Annett exposing the false binary between intrinsically evil acts and prudential judgments that Edward Feser and others seem to promote.

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Image: Lawrence OP, Flickr. 11th Station – Jesus is Nailed to the Cross. This station is in Old St Mary’s in Detroit. License: Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)