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.
This is the fourth and final installment of the series. — ML
Is fidelity to the death penalty more important than fidelity to the Magisterium?
The signers of the August 15, 2018 appeal to the Cardinals of the Catholic Church are correct in their desire to be faithful to Scripture and tradition. They seem, though, to place fidelity to their understanding of Scripture and tradition on the death penalty above fidelity to Scripture and tradition on magisterial authority. As noted earlier, the signers of the appeal were within their rights to manifest their opinion on a matter they believed concerned the good of the Church. Unfortunately, the language used in the appeal fails to correspond to the guidelines given by the CDF in its 1990 instruction Donum Veritatis.
Donum Veritatis 24 states: “The willingness to submit loyally to the teaching of the Magisterium on matters per se not irreformable must be the rule. It can happen, however, that a theologian may, according to the case, raise questions regarding the timeliness, the form, or even the contents of magisterial interventions.” The signers to the 2018 appeal do not simply raise questions. Instead, they call upon the Cardinals of the Catholic Church to advise Pope Francis “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.” The signers do not manifest a “willingness to submit loyally to the teaching of the Magisterium.” Instead, they manifest a spirit of opposition to a papal teaching and assume for themselves the authority to instruct the Roman Pontiff on his “duty” to withdraw his teaching.
In Donum Veritatis 27, we read: “Even if the doctrine of the faith is not in question, the theologian will not present his own opinions or divergent hypotheses as though they were non-arguable conclusions. Respect for the truth as well as for the People of God requires this discretion (cf. Rom 14:1-15; 1 Cor 8; 10: 23-33). For the same reasons, the theologian will refrain from giving untimely public expression to them.” The signers of the appeal, though, do present as a non-arguable conclusion that their opinion of the Church’s teaching on capital punishment is definitive and infallible. This is why they complain that “the present Roman pontiff has now more than once publicly manifested his refusal to teach this doctrine.” So they claim that the Roman Pontiff has refused to teach what they consider to be the definitive and infallible teaching of Scripture and tradition on the death penalty. At no point in the appeal do the signers ever suggest that their understanding of Scripture and tradition might be questioned. They assume that their understanding is a non-arguable conclusion. Publishing an open letter to the Cardinals of the Catholic Church might be considered an untimely expression. With the internet and so many online venues today, such expressions seem difficult to stop.
Donum Veritatis 30 recognizes that some theologians will have difficulty understanding and accepting certain magisterial teachings. In cases such as these, this counsel is given:
If, despite a loyal effort on the theologian’s part, the difficulties persist, the theologian has the duty to make known to the Magisterial authorities the problems raised by the teaching in itself, in the arguments proposed to justify it, or even in the manner in which it is presented. He should do this in an evangelical spirit and with a profound desire to resolve the difficulties. His objections could then contribute to real progress and provide a stimulus to the Magisterium to propose the teaching of the Church in greater depth and with a clearer presentation of the arguments.
The signers of the 2018 appeal do not simply make known to magisterial authorities their problems or difficulties with the new teaching on the death penalty. Instead, they ask for the teaching to be withdrawn. Nor do the signers manifest “an evangelical spirit” and “a profound desire to resolve the difficulties.” Instead, they are so cock-sure of their position that they believe the cardinals have a duty before God to correct the Roman Pontiff on his teaching.
It is sad that the signers of this appeal—some of whom I know personally—would depart so explicitly from the guidelines of Donum Veritatis in presenting their concerns about the revised text of CCC 2267. These scholars should realize that they are showing greater concern about the right to execute criminals than to the obligation to manifest religious submission of will and intellect to authoritative teachings of the ordinary Magisterium. This teaching authority of the Roman Pontiff is rooted in Scripture and tradition, and it cannot be opposed without injury to the Church.
Some of the Catholic supporters of the death penalty uphold the definitive authority of a medieval profession of faith contained in a papal letter to a small group of Waldensians, but they do not believe themselves bound by the 1989 Profession of Faith, which contains this promise:
Moreover, I adhere with religious submission of will and intellect to the teachings which either the Roman Pontiff or the College of Bishops enunciate when they exercise their authentic Magisterium, even if they do not intend to proclaim these teachings by a definitive act.
Some of the critics of Pope Francis’s teaching on the death penalty wish to uphold the binding character of the Catechism of the Council of Trent on the death penalty, but they do not believe they are bound by the Tridentine Profession of Faith when it asks the faithful to say:
I promise and swear true obedience to the Roman pontiff, successor of blessed Peter, chief of the apostles, and vicar of Christ (Denz.-H, 1868).
Some Catholic defenders of the death penalty are happy to cite St. Pius X’s 1912 Catechism of Christian Doctrine, which allows for the death penalty, but they seem to ignore what he teaches in his 1905 Major Catechism (Catechismo Maggiore) about how each Catholic should behave towards the Pope:
Question 204: How should each Catholic behave towards the Pope?
Each Catholic should recognize the Pope as Father, Shepherd, and universal Teacher and be united with him in mind and heart.
Obedience to the Roman Pontiff is much more important to the Catholic faith than upholding the right to punish criminals by intentionally killing them. In academic discussions about the death penalty, we sometimes forget that we’re talking about executions, which qualify as direct and intentional killings forbidden by the fifth commandment according to the CCC 2268. I understand on an emotional level how some people might wish for the deaths of those who commit murder or who kill their loved ones. God, however, condemns revenge (Rom 12:19), and retribution is often indistinguishable from revenge on a popular level.
Punishing people by killing them is something ugly and gruesome. This is why canon 18 of Lateran IV (1215) ruled that “no cleric may pronounce a sentence of death, or execute such a sentence, or be present at its execution.” The 1917 Code of Canon Law likewise regarded a judge who handed down a death sentence as irregular for Holy Orders (canon 984.6).
I hope and pray that Catholics who continue to oppose what the Church now teaches on the death penalty will consider how their opposition—especially if it’s public—injures the Body of Christ. I ask those who have taken the Profession of Faith to ask themselves how their opposition to an authoritative magisterial teaching can be harmonized with their promise to “adhere with religious submission of will and intellect to the teachings which either the Roman Pontiff or the College of Bishops enunciate when they exercise their authentic Magisterium, even if they do not intend to proclaim these teachings by a definitive act.” Even if they have difficulties with the present teaching of the Church on the death penalty, they are still required to manifest “religiosum … intellectus et voluntatis obsequium” to the teaching according to canon 752 of the CIC. A religious submission of intellect and will is required because of the God-given authority of the Roman Pontiff and the college of bishops. The teaching authority of the Successor of Peter and the apostles comes from Christ, who told them: “Whoever listens to you, listens to me” (Lk 10:16). If we wish to listen to Christ, let us listen to the Pope and the bishops who teach in his name. Obedience to the Magisterium is much more important to the Catholic faith than the execution of criminals.
Pope St. Nicholas I, pray for us.
This installment concludes Dr. Robert Fastiggi’s four-part essay on Capital Punishment and Magisterial Authority. We are grateful that he was able to share this clear and comprehensive analysis of the nature and weight of the Church’s revised teaching on a very important matter of human life and dignity. We hope that this essay will lead Catholics to a deeper understanding of the Magisterium and will foster fruitful discussions on the Church’s teachings on the inviolability and dignity of the human person. —ML
Image: Pope Francis meeting with new Bishops participating in the formation course organized by the Dicasteries for Bishops and for Eastern Churches, September 2022 (Vatican Media)
Robert Fastiggi, Ph.D. is Professor of Systematic Theology at Sacred Heart Major Seminary in Detroit, MI. He is a former president (2014–2016) of the Mariological Society of America; a member of the theological commission of the International Marian Association; and a corresponding member of the Pontifical Marian Academy International.