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.

Click here for Part 2.

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

Is dissent from the Church’s teaching on the death penalty justified?

The teaching of the Church expressed in the revision of CCC 2267 corresponds to prior statements of Pope Francis on the death penalty,[1] and it builds upon earlier statements of St. John Paul II and Benedict XVI. In his October 3, 2020 encyclical, Fratelli Tutti, Pope Francis treats the death penalty in nos. 263–270. The Holy Father’s treatment in these numbers represents the longest treatment ever given to capital punishment in a papal document. As an encyclical, it represents a magisterial authority that is clearly authoritative. Perhaps the most important development of the Church’s teaching on capital punishment is the recognition that it violates the dignity of the human person. Citing Evangelium Vitae 9, of John Paul II, Pope Francis teaches:

Let us keep in mind that “not even a murderer loses his personal dignity, and God himself pledges to guarantee this” [John Paul II, Evangelium Vitae, 9]. The firm rejection of the death penalty shows to what extent it is possible to recognize the inalienable dignity of every human being and to accept that he or she has a place in this universe. If I do not deny that dignity to the worst of criminals, I will not deny it to anyone. I will give everyone the possibility of sharing this planet with me, despite all our differences (no. 269).

This is a teaching of the ordinary papal Magisterium. Although it is not definitive and irreformable, it is clearly authoritative, and it merits the religious submission of will and intellect required by Lumen Gentium 25, and canon 752 of the 1983 Code of Canon Law (CIC).

Arguments used to justify rejection of current Catholic teaching on the death penalty

Some Catholics who do not wish to accept this teaching (and that of the revised CCC 2267) have tried to come up with arguments to justify their dissent. We have already seen that Dr. John Joy argues that there is no obligation to obey a papal teaching if it is contrary “to a truth revealed by God himself or infallibly taught by the Church as pertaining to divine revelation.” This position, though, assumes that what Pope Francis has taught about the death penalty is contrary to divine revelation and the infallible teaching of the Church. This assumption is based on Dr. John Joy’s private judgment and that of some other scholars. It cannot, however, claim any type of certainty or magisterial authority, and it has been disputed by other scholars. As we have already seen, the Magisterium, represented by the CDF, has rejected the thesis of a definitive infallible teaching on the death penalty. The present teaching of the Church represents an authentic development of doctrine. Such a development of doctrine would not be possible if there were already a definitive and irreformable tradition.

Some Catholics believe that the revised language of CCC 2267 suggests that the death penalty is intrinsically immoral, and this would mean that the Church allowed something that was intrinsically immoral to exist. It would also mean that God commanded intrinsically immoral actions in the Old Testament. I believe Anthony Annett addresses these concerns in his excellent article on the false binary between intrinsically evil actions and prudential judgments. Some realities such as slavery and polygamy were tolerated in the Old Testament even though they were later forbidden. Because of the development of doctrine on human dignity, the Church now recognizes that even the lives of murderers are inviolable. As mentioned earlier something does not need to be declared intrinsically evil to forbid it. God provided David with multiple wives in 2 Sam 12:8, which would suggest that polygamy is not intrinsically evil. Polygamy was later seen to be an attack against the fidelity and sacramental bond of the spouses. The Council of Trent, therefore, forbad it because of a deeper understanding of divine law. In this sense, the Church came to recognize that polygamy is inadmissible. Some scholars believe that the death penalty someday can be recognized as intrinsically immoral by the Church. We do not need to enter into that discussion here. It suffices to give religious submission of will and intellect to the teaching of the Church that the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.

Challenges to the authoritative nature of the teaching

Another argument for rejecting the teaching is to minimize its authority. This is the strategy of Cardinal Raymond Burke, who claims that the revision of CCC 2267 represents just the personal judgment of Pope Francis. According to Cardinal Burke, Catholics should respect the Pope’s opinion, but they are not required to follow it if he’s wrong. In an article analyzing some of Cardinal Burke’s public statements, Mike Lewis shows how this argument of Cardinal Burke is not only inaccurate but also a betrayal of the loyalty every Cardinal pledges to the Roman Pontiff. It should also be noted that revised text of CCC 2267 does not say “Pope Francis personally teaches” but “the Church teaches.”

Dr. Edward Peters, a prominent canon lawyer, has argued that the Roman Pontiff cannot “control” the Church’s “ordinary” Magisterium:

The Church’s “extraordinary” magisterium, capable of binding the faithful in faith and doctrine, can proceed solely-papally or papally-episcopally; but her “ordinary” magisterium, also capable of binding the faithful in faith and doctrine, can proceed only papally-episcopally. As Francis’ move on the Catechism hardly qualifies as papal-episcopal, and there being no such thing as an ‘purely papal, ordinary, magisterium’ (the term itself seems an oxymoron, implying that some significant points of Church teaching have been taught only by popes!), then Francis’ views on the death penalty might (I stress, might, given the infallibility concerns above) contribute to the Church’s ordinary magisterium but they do not, and cannot, control it.

Because Dr. Peters is my colleague, I tried to read his argument in a benevolent manner, but I must say that his position cannot be defended. To claim that there is “no such thing as a purely papal, ordinary magisterium” undermines the universal ordinary teaching authority of the Roman Pontiff, which has been affirmed by the Council of Florence (Denz.-H, 1307), Vatican I, Denz.-H, 3064), Vatican II (Lumen Gentium 22 and 25), and other documents (e.g. Pius XII, Humani Generis 20: Denz.-H, 3885).[2] The ordinary teaching authority of the Pope is also expressed in canon 752 of the CIC when it says that

Although not an assent of faith, a religious submission of the intellect and will must be given to a doctrine which (sive) the Supreme Pontiff or (sive) the college of bishops declares concerning faith or morals when they exercise the authentic magisterium, even if they do not intend to proclaim it by definitive act; therefore, the Christian faithful are to take care to avoid those things which do not agree with it.

The sive … sive construction means “either … or” or “whether … or.” It clearly shows that there is an ordinary papal Magisterium that is distinct from the ordinary Magisterium of the college of bishops, which, of course, must always teach in communion with the Roman Pontiff (cf. Lumen Gentium 22). Dr. Peters is correct that we should not think that significant points of doctrine have been taught only by popes. This, though, is because Catholic bishops, recognizing the ordinary universal teaching authority of the Roman Pontiff, teach in communion with him. It’s also incorrect to believe that what Pope Francis teaches on the death penalty represents only his personal view. Many bishops and conferences of bishops prior to the change in CCC 2267, also held (and still hold) that the death penalty is inadmissible.[3]

The 2004 Ratzinger memorandum

Another argument used to reject the Church’s revised teaching on the death penalty is to claim that the CDF’s 1990 instruction, Donum Veritatis, and a 2004 memorandum of Cardinal Ratzinger allow for disagreement with prudential magisterial teachings. Feser and Bessette devote pages 144–157 to developing this argument. The weakness of this argument is that assumes that the Church’s teaching on the death penalty is merely prudential. Perhaps that argument could have been used prior to the 2018 revision of CCC 2267, but it cannot be used now. This is because the revised text of the CCC articulates a moral judgment that is not merely prudential. To recognize the death penalty as “an attack on the inviolability and dignity of the person” is not a prudential judgment, but a moral judgment occasioned by the development of the Church’s doctrine on the dignity of the human person. Abstracting from any concrete situation, the question is whether a murderer loses his or her inviolability and dignity because of the heinous crime committed. John Paul II answered this question in no. 9 of his 1995 encyclical, Evangelium Vitae by citing Genesis 4:15 and St. Ambrose:

And yet God, who is always merciful even when he punishes, “put a mark on Cain, lest any who came upon him should kill him” (Gen 4:15). He thus gave him a distinctive sign, not to condemn him to the hatred of others, but to protect and defend him from those wishing to kill him, even out of a desire to avenge Abel’s death. Not even a murderer loses his personal dignity, and God himself pledges to guarantee this. And it is precisely here that the paradoxical mystery of the merciful justice of God is shown forth. As Saint Ambrose writes: “Once the crime is admitted at the very inception of this sinful act of parricide, then the divine law of God’s mercy should be immediately extended. If punishment is forthwith inflicted on the accused, then men in the exercise of justice would in no way observe patience and moderation, but would straightaway condemn the defendant to punishment. … God drove Cain out of his presence and sent him into exile far away from his native land, so that he passed from a life of human kindness to one which was more akin to the rude existence of a wild beast. God, who preferred the correction rather than the death of a sinner, did not desire that a homicide be punished by the exaction of another act of homicide.”

This judgment of John Paul II was the great step in the development of the Church’s teaching on the death penalty. This teaching of Evangelium Vitae 9, however, was not adequately incorporated into the text of no 2267 of the 1997 edition of the Catechism. Prior to the 2018 revision authorized by Pope Francis, the reason given for limiting punishments to non-lethal means—unless there was no other way of defending public safety—was because “they are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.” The reasons “more in keeping” and “more in conformity” seemed to some Catholics to be more prudential considerations than moral principles. The 2018 formulation is much clearer and more precise. The death penalty is inadmissible because it is “an attack on the inviolability and dignity of the person.” This reflects much better the teaching of Evangelium Vitae 9, that, “not even a murderer loses his personal dignity, and God himself pledges to guarantee this.”

The invocation of Cardinal Ratzinger’s 2004 memorandum on the worthiness to receive Holy Communion no longer applies because the 2018 revision of the CCC describes the death penalty as inadmissible, and it has removed the possible allowance of capital punishment if it is “the only possible way of defending human lives against an unjust aggressor.” The presence of this exception in the 1997 edition of the CCC allowed Catholic defenders of capital punishment to claim that it is a matter of prudence and open debate whether the death penalty is the only possible means of defending public safety. In 2015, Matthew Shadle argued that some decisions are more prudential than others, showing that the arguments of Edward Peters and Steven A. Long to allow for the death penalty manifested an inadequate understanding of prudence.

Such discussions should no longer take place because of the revised teaching of the Church in 2018 on the death penalty, which has been reaffirmed by Pope Francis in Fratelli Tutti. Those who continue to cite Cardinal Ratzinger’s 2004 memorandum to defend a right to dissent from the Church’s teaching on the death penalty not only misinterpret the memorandum—as Mike Lewis has noted—but they are citing a document that was never intended for publication, as Cardinal Ladaria has explained. Moreover, that memorandum has been superseded by the change of CCC 2267 in 2018 and the CDF’s 2018 letter to the Catholic bishops. The CDF’s 2018 letter—which supports the inadmissibility of the death penalty—carries much more authority than the 2004 memorandum because it is a public letter addressed to all the Catholic bishops and not just a private communication to some bishops that was never intended for publication.

Some critics of the revised teaching of the Church on the death penalty claim that they can oppose the teaching because popes have taught errors in the past, and they usually bring up cases such as Pope Honorius I (r. 625–638) and John XXII (r. 1316–1334). What these critics don’t understand is that it was the Magisterium itself that resolved the doctrinal issues involved in these cases not the critics. It is certainly permitted for scholars to raise questions about non-definitive papal teachings and to ask for clarifications. It is not permitted, though, for private scholars to assume the authority to correct the popes. If dissent from authoritative magisterial teachings can be justified because of alleged errors of prior popes, then any magisterial teaching can be rejected.

Debate over the term “inadmissible”

Another argument for rejecting the Church’s new teaching on the death penalty is that it uses confusing and novel terms that have no clear theological meaning. This was the claim regarding the term “inadmissible.” Mike Lewis, though, has shown that this claim is without merit because the term “inadmissible” has been used multiple times by the Magisterium. To his examples, I can add Pope Innocent III’s January 9, 1212 letter to Bishop Henry of Strasbourg rejecting trials by ordeal using cold water, hot irons, or duels. Innocent III tells Bishop Henry that “the Church does not admit (non admisit) these kinds of trials” (Denz.-H, 799). To say these trials are not admitted (literally “have not been admitted”) is another way of saying they are inadmissible.

To be honest, I have seen other questionable claims made by Catholic defenders of the death penalty. John Finnis has already shown how Feser misrepresented what Pius XII said in his 1957 address to Catholic lawyers based on the Italian original of the text. To this I can add that Feser and Bessette claim that Pius XII “holds that capital punishment is bound to be called for with some frequency” (p. 197). They provide no evidence, however, for this claim. It is true that Pius XII (1876–1958) recognized the theoretical right of the State to inflict the death penalty, but Italy had outlawed the death penalty in 1889—ten years before Pius XII (Eugenio Pacelli) was ordained a priest. The death penalty was reintroduced by Mussolini and the Fascists in 1926, but the Italian Constitution outlawed it for all civil crimes on January 1, 1948. If Pius XII wanted to call for capital punishment “with some frequency” after 1948, he would have been in violation of the Italian constitution. Feser and Bessette also seem unaware that Pius XII has been criticized for seeking clemency for Nazi war criminals and opposing their executions.

“The death penalty is legitimate”

There are finally some Catholics, like Fr. Gerald Murray, JCD, who simply reject Pope Francis’s teaching on the death penalty because they think it’s wrong. During the October 8, 2020 episode of The World Over program on EWTN, the “papal posse” of Fr. Murray, Robert Royal, and Raymond Arroyo discuss Pope Francis’s encyclical, Fratelli Tutti. Between the 15:30 and 18:40 minute mark of the segment, Fr. Murray discusses what Pope Francis teaches about the death penalty, and he makes some assertions that are simply incorrect. For example, he says that if someone takes the life of another, he loses his own right to life. This, though, directly contradicts what John Paul II teaches in Evangelium Vitae 9. Fr. Murray also claims that the teaching of the Church has been unanimous in its approval of the death penalty, stating explicitly, “the death penalty is legitimate.” As we have seen, this is not the case in light of Pope Nicholas I’s 866 Letter to the Bulgarians as well as various Patristic statements. Fr. Murray repeats the false claim that the term “inadmissible” has no theological meaning, and he states that John Paul II—although he was against the death penalty—never called it immoral. Fr. Murray apparently is unaware that St. John Paul II referred to the death penalty as “cruel and unnecessary” in his homily of January 27, 1999 in St. Louis. Is not something cruel also immoral?

The most disturbing aspect of Fr. Murray’s discussion of Fratelli Tutti’s teaching on the death penalty is his utter lack of any respect toward the teaching authority of Pope Francis. Fr. Murray assumes a posture of knowledge and authority on the subject, and he actually states that Pope Francis has no authority to change the “perennial teaching” of the Church on the death penalty. For a Catholic priest to manifest such public opposition to the teachings of a papal encyclical is most disturbing if not scandalous. At the very least, Fr. Murray should make an effort to understand and appreciate what the Holy Father is saying. Instead, he manifests complete disdain for the teaching authority of the Roman Pontiff, and publicly contradicts a papal teaching. Fr. Murray completely fails to give religious submission of will and intellect to a teaching of the ordinary Magisterium, which is required by Lumen Gentium 25, and canon 752 of the 1983 CIC. If a priest or theologian can reject any magisterial teaching with which he disagrees, then the Magisterium loses its authority altogether.

The CDF, in its 1990 instruction, Donum Veritatis, notes that “it is one of the theologian’s tasks to give a correct interpretation to the texts of the Magisterium and to this end he employs various hermeneutical rules. Among these is the principle which affirms that Magisterial teaching, by virtue of divine assistance, has a validity beyond its argumentation, which may derive at times from a particular theology” (no. 34). Some of the Catholic critics of the revised teaching on the death penalty believe they must be convinced of the truth of the teaching before they can give assent to it. Donum Veritatis 28 states that a disagreement with a magisterial teaching “could not be justified if it were based solely upon the fact that the validity of the given teaching is not evident or upon the opinion that the opposite position would be the more probable.” If assent to magisterial teachings requires being convinced by the arguments, then the Magisterium is reduced to no more than a partner in debate rather than the Church’s teaching authority.

Part 4 of this essay will be published tomorrow. Please click here for Part 1. Click here for Part 2.

Notes

[1] Among the earlier statements of Pope Francis, three are most notable: Address to the International Association of Penal Law (October 23, 2014): Letter to the President of the International Commission against the Death Penalty (March 20, 2015); and Address to Participants in the Meeting Promoted by the Pontifical Council for Promoting the New Evangelization (October 13, 2017).

[2] The Catholic writer, Ron Conte, Jr, described Dr. Peters’ position on the ordinary papal Magisterium as heretical. I am hoping that Dr. Peters will write a public clarification of his position.

[3] The USCCB website provides links to statements of many bishops and groups of bishops against the death penalty here.

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Image: Christ giving the Keys of Heaven to St. Peter by Peter Paul Rubens – Gemäldegalerie – Berlin – Germany. Public Domain. Wikimedia Commons.