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 1.

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

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Has the legitimacy of the death penalty been taught infallibly by the ordinary and universal Magisterium of the Catholic Church?

The signers of the August 15, 2018 appeal to the Cardinals against the revision to the teaching on the death penalty in the Catechism of the Catholic Church maintain that 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.” With respect to the Word of God, we have already shown that the support for the death penalty in the Old Testament manifests a stage in salvation history that is temporary and incomplete. With regard to the New Testament, the Church has deepened and refined her understanding, and she now 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’” (CCC, 2267).

The claim that the legitimacy of the death penalty has been taught definitively and infallibly by the ordinary and universal Magisterium of the Church is a central theme of 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), and it has also been defended, with some qualifications,[1] by Professor Christian Washburn. What exactly, though, has been taught definitively and infallibly by the ordinary and universal Magisterium? Is it that the death penalty is legitimate, and, therefore, cannot be prohibited by the Church? Or is that the death penalty is not intrinsically evil and cannot, therefore, be declared intrinsically evil by the Church? The signers of the August 15, 2018 letter argue that “the legitimacy in principle of capital punishment” is infallible and definitive because it is “the consistent teaching of the magisterium for two millennia.” Their position, therefore, seems to be that the Magisterium of the Church cannot teach that capital punishment is illegitimate. The most the Church can do, it would seem, is to provide prudential reasons why the death penalty should not be used.

I think several things need to be clarified in this discussion. The first is whether the legitimacy of the death penalty has been set forth by the ordinary and universal Magisterium in such a way that there cannot be a doctrinal development leading to the new formulation of CCC, 2267. The second is how to understand the new formulation of the Catechism. Can some action be declared inadmissible and an attack on the inviolability and dignity of the person without being declared intrinsically evil?

I do not believe the legitimacy of the death penalty qualifies as a definitive and infallible judgment of the Magisterium.[2] My position is the same as the late Fr. Anselm Günthör OSB (1911-2015), who wrote that the statements of the ecclesial Magisterium on the death penalty “are occasional assertions and do not represent a fully definitive position; we must not undervalue them, but nor should we consider them to be unchangeable and perennially valid Magisterial statements.”[3] I believe some scholars confuse a commonly held position—known as a sententia communis—with a judgment that has been set forth definitively by the ordinary and universal Magisterium. In a two-part article that appeared in Public Discourse on October 22–23, 2017, Dr. E. Christian Brugger argued why the conditions of Lumen Gentium, 25, for a definitive infallible teaching of the ordinary universal Magisterium have not been met with respect to legitimacy of the death penalty. Shortly after the August 2, 2018 change to the Catechism, the eminent Oxford scholar, John Finnis, argued in a two-part article (Public Discourse August 22 and 23, 2018) that there is no definitive magisterial teaching that “excludes the conclusion that capital punishment is inherently wrong.”

I do not need to repeat all the arguments of Professors Brugger and Finnis. Instead, I wish to show that assertions made in the August 15, 2018 appeal to the Cardinals are opinions open to challenge. If we’re dealing with a scholarly dispute over the infallible status of prior magisterial teaching on the death penalty, it is only the Magisterium—not the disputing scholars—that can resolve the dispute.

Discerning what judgments of the Magisterium are definitive and infallible is sometimes easy and sometimes not so easy. The Church’s teaching authority will at times allow theologians to assign different theological notes to a particular doctrine.[4] Other times, though, the Magisterium will intervene to forbid a position or to affirm a particular doctrine as definitive and infallible. For example, the perpetual virginity of Mary is commonly considered to be a dogma by virtue of the ordinary universal Magisterium (though some believe it was infallibly defined by Pope Martin I ex cathedra at the Lateran Synod of 649). Whenever the perpetual virginity has been challenged, the Magisterium has intervened, In addition to the Lateran Synod of 649 (Denz.-H, 502), mention can be made of Paul IV’s 1555 constitution, Cum quorumdam hominum (Denz.-H, 1880), and the 1968 critique by a commission of Cardinals regarding the errors and ambiguities of the Dutch Catechism, one of which was the obfuscation of Mary as ever-virgin. These interventions, combined with all the references to Mary as ever-virgin in various creeds, papal documents, and the liturgy leave no doubt that the perpetual virginity of Mary is infallibly taught by the ordinary and universal Magisterium.

In a similar way, the reality of demons as real creatures of intellect and will is affirmed in the liturgical life of the Church (e.g. baptisms, exorcisms) and in various creeds (e.g. the profession of faith of Lateran IV (Denz.-H, 800). In the early 1970s, however, some Catholic theologians, under the influence of efforts to de-mythologize the Bible, began teaching that Satan and the demons are only symbols of evil rather than actual creatures of intellect and will. The Congregation for the Doctrine of the Faith responded in 1975 with a document affirming the dogmatic status of the Church’s belief that demons exist as real creatures of intellect and will.

With respect to the death penalty, there are enough examples of Church Fathers opposing executions to place in doubt the claim of a universal Patristic consensus. Tertullian insisted that “the Creator “puts His interdict on every sort of man-killing by that one summary precept, ‘Thou shalt not kill’” (De Spectaculis, 2). St. Cyprian noted that Christians “do not in turn assail their assailants, for it is not lawful for the innocent to kill even the guilty” (Epistle 60 to Cornelius). Lactantius wrote that “there is no exception to this command of God. Killing a human being, whom God willed to be inviolable, is always wrong [occidere hominem sit semper nefas] (Divine Institutions, lib. VI cap. 20).

Early Christian legislation likewise shows opposition to capital punishment. The Apostolic Tradition/Constitutions (ca. 215), attributed to St. Hippolytus, stipulate that “a military man in authority must not execute men; if he is ordered he must not carry it out” (16, 9; Botte ed.). The Council of Elvira (ca. 300–303) in its canon 56 required a Christian magistrate “to keep away from the Church” during the year of his service as a joint magistrate (duumvir). The reason for this was because he might have to carry out capital sentences. The Synod of Rome for the Gauls was held around 386 A.D. under Pope St. Siricius (r. 384–399). In Chapter V, 13, [PL 13, 1190], the Synod states that: “Those who exercised secular authority are not to be admitted to the ministry of the altar” (Eos qui jus saeculi exercuerunt ad altaris ministerium admittendos non esse).

Some of the examples given in the Feser-Bessette book are not that convincing when you study them carefully. For example, Pope Innocent I’s 405 Letter to the Bishop of Toulouse not only supports the right to carry out the death penalty but also torture (PL 20, 499). Pope St. Nicholas I, however, in his letter to the Bulgarians in 866 says that “neither divine nor human law” allows such torture (Denz.-H, 648). This shows that what Innocent I expressed in his 405 letter about torture and the death penalty was hardly definitive. It’s also important to note that, after being asked whether it’s permissible for people after baptism to administer torture (tormenta) or a capital sentence (capitalem … sententiam), Innocent I says: “About these matters we read nothing definitive from the forefathers” (De his nihil legimus a majoribus definitum; PL 20, 499). This one simple sentence completely refutes Feser and Bessette’s claim that there was a definitive magisterial tradition upholding the legitimacy of the death penalty in the early Patristic Age. Pope Innocent I explicitly states that he reads “nothing definitive” from the forefathers on this matter. The fact that Pope Nicholas I in 866 rejects the legitimacy of torture likewise proves that Innocent I’s 405 Letter to the Bishop of Toulouse cannot be considered a definitive magisterial judgment.

In his 2020 encyclical, Fratelli Tutti, no. 265, Pope Francis points to a letter of Nicholas I (r. 858–867) as evidence that there have always been some in the Catholic tradition opposed to the death penalty. Pope St. Nicholas I, in his November 13, 866 letter to the Bulgarians, points to the example of St. Paul, and he writes:

For in this manner the blessed apostle Paul—who previously was an insolent persecutor breathing threats and killings against the disciples of the Lord [cf. Acts 9:1]—after he attained mercy and was converted by divine revelation—not only did he not impose the death penalty on anyone but he also wished to be anathema for the faithful [cf. Rom. 9:3] and was prepared to spend and be spent most freely for the souls of the faithful [cf. 2 Cor. 12:15]. In the same manner, after you have been called by the election of God and illumined by his light, you should no longer desire deaths like before but without doubt and in every occasion (omni occasione) you must (debetis) call back (revocare) everyone (omnes) to the life of the body as well as the soul. And just as Christ has led you from eternal death—in which you were held bound—to eternal life, just so with diligence you are to save from death not only the innocent but also the guilty, in accordance with the most wise Solomon: “Save those who are led to death; and do not cease freeing those who are brought to execution’ (Prov. 24:11).”[5]

Feser and Bessette briefly mention Pope Nicholas I on p. 123 of their book, and they claim that he, like John Paul II much later, was simply urging rulers not to inflict the death penalty. The language used by Nicholas I, though, goes beyond a simple exhortation. He tells the Bulgarians “without doubt and in every occasion (omni occasione) you must (debetis) call back (revocare) everyone (omnes) to the life of the body as well as the soul.” The Latin debetis means “you ought to,” “you are obliged to,” or “you must.” The Bulgarians are instructed to rescue all (omnes) from death, the guilty as well as the innocent, and this is to be done “in every occasion” (omni occasione). For Pope St. Nicholas I, executions by Christians are inadmissible for theological and Scriptural reasons. Because we have been rescued by Christ from eternal death, we are obliged to rescue from death the guilty as well as the innocent. Pope Nicholas I’s teaching on the death penalty is in perfect harmony with the teaching of Pope Francis.

This one witness by a pope is sufficient to refute all the claims of an unchanging 2,000 year tradition in support of the legitimacy of the death penalty. Could you imagine if a pope had stated that Mary was not perpetually a virgin or that demons are only symbols and not real creatures of intellect and will? That would certainly create problems for claiming that there is a unanimous magisterial witness to Mary’s perpetual virginity or the actual existence of demons. It’s interesting that Professor Washburn, in his Thomist article, does not even mention Pope St. Nicholas I.

Feser, Bessette, and other Catholic supporters of capital punishment also appeal to the “profession of faith” prescribed for a group of Waldensians by Innocent III in 1208 and amended in 1210 (Denz.-H 790-797) to include a statement about carrying out a judgment of blood without mortal sin (Denz.-H, 795). Innocent III’s profession states that the death penalty can be carried out by the secular power under certain conditions “without mortal sin.” This is hardly an enthusiastic endorsement of the death penalty. It’s simply a judgment on the subjective culpability of the one who carries out the sentence for the secular power. It was not for the Waldensians but for the Church to decide whether executions could sometimes be carried out without mortal sin. If the profession of faith for the Waldensians were definitive, then nothing in the profession could change.[6] This same profession, though, also requires Catholics to oppose “manifest heretics… even unto death … as adversaries of Christ and the Church” (Denz.-H 796). This requirement, though, was not reaffirmed by Vatican II, which looks upon Non-Catholic Christians—who are in material heresy on many points of dogma—as “separated brethren” (Decree on Ecumenism, 3). Sometimes only with the passage of time can we know which teachings are definitive and which are open to development. The Magisterium is the authority to decide this, not private scholars like Feser and Bessette.

I also don’t think Leo X’s censure 33 in his 1520 papal bull, Exsurge Domine against Martin Luther (Denz. H, 1483) can claim to be a definitive judgment. The statement censured—“That heretics be burned is against the will of the Spirit”—is not stated to be overtly heretical. It is included among errors that are rejected “as respectively heretical or scandalous or false or offensive to pious ears or seductive of simple minds and in opposition to Catholic truths (cf. Denz. H, 1492). It’s not clear that censure 33 concerns something heretical. The Church in 1520 believed that the burning of heretics was sometimes justified in extreme cases. Because the Church at that time considered this practice acceptable, it would be scandalous or offensive to pious ears for the faithful to believe that the Church was acting against the will of the Spirit. This judgment was directed against the rashness and presumption of Luther.[7] It was hardly a definitive judgment on the legitimacy of burning heretics. If it were, we should still permit heretics to be burned.

Suppose someone in 1520 claimed that “it is against the Holy Spirit to say Mary was conceived with original sin.” This person could have been censured in light of Pope Sixtus IV’s constitution, Grave nimis of Sept. 4, 1483, which forbad labelling as heretical the opinion that “Mary was conceived with original sin” (Denz.-H, 1426). This was because Sixtus IV said “the matter has not yet been decided by the Roman Church and the Apostolic See.” Magisterial statements must be understood in light of their chronological context and the state of doctrinal development in which they were given. Feser and Bessette, however, approach previous magisterial statements as proofs of an unchanging magisterial tradition on the death penalty. They, therefore, downplay or reject more recent magisterial statements by St. John Paul II and Pope Francis. Their claim that there is a definitive unchanging magisterial teaching in support of the legitimacy of the death penalty, however, is their own private opinion. It has no magisterial weight whatsoever.

Another proof that some Catholic death penalty supporters cite is the Catechism of the Council of Trent—also called The Roman Catechism—of 1566. In the section on the fifth commandment, various exceptions to the commandment “thou shalt not kill are given.” After noting that it is not wrong to kill animals, the Roman Catechism goes on to say:

Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death 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 end of this Commandment is the preservation and security of human life (ut hominum vitae salutique consulatur). Now the punishments inflicted by 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 (audacia et iniuria).[8]

What the Roman Catechism teaches here does not preclude subsequent development. If the end of the fifth commandment is “the preservation and security of human life,” the question should be raised whether the lives of the guilty are also worth preserving. If human life can be preserved without the killing of criminals, then there is no reason to kill them. It should likewise be noted that other doctrines and disciplines found in the Roman Catechism have subsequently been abandoned by the Church. For example, the Catechism teaches that slaves are not canonically fit for the Sacrament of Holy Orders.[9] This is because the man “who is not his own master and is in the power of another, should not be dedicated to divine service.”[10] Such a discipline presumes that slavery is acceptable, which the Church certainly does not accept today. Finally, it should be remembered that Catechisms only carry the doctrinal weight that the teachings they present already possess (see Cardinals Ratzinger and Schönborn, Introduction to the Catechism of the Catholic Church [Ignatius Press, 1994], 25–27). The position of the Roman Catechism on the death penalty does not represent a definitive, infallible position that prevents future development.

How, though, are we to decide whether or not there was a definitive, infallible teaching on the death penalty prior to Pope Francis? If there is a dispute among scholars on this question, then it is up to the Magisterium to resolve the dispute. I believe the Magisterium has resolved the dispute in the 2018 letter of the CDF to the bishops regarding the change to CCC, 2267. This letter teaches that there has been an authentic development of Catholic doctrine with respect to the death penalty:

1. 7. …The new text, following the footsteps of the teaching of John Paul II in Evangelium vitæ, affirms that ending the life of a criminal as punishment for a crime is inadmissible because it attacks the dignity of the person, a dignity that is not lost even after having committed the most serious crimes. This conclusion is reached taking into account the new understanding of penal sanctions applied by the modern State, which should be oriented above all to the rehabilitation and social reintegration of the criminal. Finally, given that modern society possesses more efficient detention systems, the death penalty becomes unnecessary as protection for the life of innocent people. Certainly, it remains the duty of public authorities to defend the life of citizens, as has always been taught by the Magisterium and is confirmed by the Catechism of the Catholic Church in numbers 2265 and 2266.
   8. All of this shows that the new formulation of number 2267 of the Catechism expresses an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium. These teachings, in fact, can be explained in the light of the primary responsibility of the public authority to protect the common good in a social context in which the penal sanctions were understood differently, and had developed in an environment in which it was more difficult to guarantee that the criminal could not repeat his crime.

The Magisterium of the Church, represented by a letter of the Cardinal Prefect and Secretary of the Congregation for the Doctrine of the Faith—with the approval of the Roman Pontiff—has affirmed that there has been “an authentic development of doctrine” of the Church on the death penalty. This shows that there was not a definitive magisterial tradition standing in the way of this doctrinal development, which now affirms that the death penalty is an attack on the dignity of the human person. I know Feser, Bessette, and Steven A. Long have argued that the death penalty actually affirms human dignity because it treats people as free and rational beings. The Magisterium, though, has rejected that argument, and we hope that Professors Feser, Bessette, and Long will now acknowledge that the position they defended is not now the position of the Catholic Church.

Part 3 of this essay will be published tomorrow. Please click here for Part 1.

Notes

[1] In his scholarly article, published in The Thomist 82 (2018): 353-406, Professor Washburn does not manifest opposition to what Pope Francis teaches on the death penalty. Instead, he claims that “Pope Francis’s recent modification to the catechism is best seen in both language and content as an authentic development of St. John Paul II’s intervention in the prudential order” (p. 406). Washburn believes that, based on Scripture and past teachings the change in the CCC could not be interpreted “as an affirmation that capital punishment is intrinsically evil” (ibid.).

[2] For the purposes of this article, we do not need to enter into the distinction between truths revealed by God, which must be believed based on the authority of the Word of God (believed as of the faith) and truths which must be definitively accepted and held (held as of the faith) because they have been set forth definitively by the Magisterium. These distinctions are explained by the Cardinal Ratzinger and Archbishop Bertone in a 1998 Commentary on the Profession of Faith, which can be found here.

[3] Anselm Günthör OSB, Chiamata e risposta. Una nuova teologia morale. III: Morale speciale: Vol. III (Alta: Edizioni Paoline 1979) 557-558) as cited in footnote 35 of an excellent article by Fr. Thomas Williams, L.C., “Capital Punishment and the Just Society” in Catholic Dossier (Sept./Oct., 1998).

[4] Theological notes are found in traditional manuals such as The Fundamentals of Catholic Dogma by Fr. Ludwig Ott (London: Baronius Press, Revised Edition, 2018). These notes assign various grades of certitude to doctrines and theological opinions such as fides divina, sententia fidei proxima, sententia communis, etc. Ever since the promulgation of the 1989 Profession of Faith, these notes have been simplified as: a) truths revealed by God; doctrines definitively to be held; c) authoritative doctrines that are not per se irreformable.

[5] My translation from Pope Nicholas I, Epistula 97, cap. 25; J.P. Migne, ed. Patrolgia Latina (Paris, 1844ff) [PL] 119, 991.The Latin text reads: “Ita ut quemadmodum beatus apostolus Paulus prius persecutor, et contumeliosus, et spirans minarum et caedis in discipulos Domini (Act. IX), posteaquam misericordiam consecutus est, divina revelatione conversus, non solum minime cuilibet mortis poenam intulit, verum etiam anathema esse optabat pro fratribus (Rom. IX), et libentissime impendere, et superimpendi paratus erat pro animabus fidelium (II Cor. XII): ita et vos postquam electione Dei vocati, et lumine ipsius illuminati estis, non jam sicut prius mortibus inhiare, sed omnes ad vitam tam corporis, quam animae debetis omni occasione inventa procul dubio revocare, et sicut vos Christus de morte perenni, , qua detinebamini, ad vitam aeternam reduxit, ita ipsi innoxios quosque, verum etiam et noxios a mortis exitio satagite cunctos eruere, secudum illud sapientissimi Salomonis: Erue eos qui ducuntur ad mortem; et qui trahuntur ad interitum, liberare ne cesses; (Prov xxiv).” Note: PL 119, 991 provides the text of Proverbs xxiv but cites it as Proverbs xiv due to a typo.

 [6] Even Christian Washburn, who believes it’s definitive that the death penalty is not an intrinsic evil, does not regard the 1210 Profession of faith for the Waldensians as a definitive declaration. See his article in The Thomist 82 (2018), p. 368

[7] It’s worth noting, as David Armstrong has written, that Luther himself approved of executing the Anabaptists who opposed him.

[8] Catechism of the Council of Trent for Parish Priests, trans. John A McHugh, O.P. and Charles J. Callan, O.P. (Rockford, IL: Tan Books and Publishers, 1982) 421.

[9] Ibid., 336.

[10] Ibid.

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Image: Massacre of the Mérindol Waldensians in 1545. By Gustave Dore (1832-1886) – Le Point No1978, Public Domain, https://commons.wikimedia.org/w/index.php?curid=11207971