“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.”
— Cardinal Luis Ladaria
Prefect of the Congregation for the Doctrine of the Faith
Letter to the Bishops regarding the New Revision of No. 2267 of
the Catechism of the Catholic Church on the Death Penalty
As expected, Pope Francis’ revision of paragraph 2267 of the Catechism of the Catholic Church (CCC), dealing with the death penalty, has drawn a great deal of criticism from the pope’s usual detractors. It is true that in the past the Church has taught the legitimacy of the death penalty in certain cases, and (more recently) said that it could only be a legitimate recourse “if this is the only possible way of effectively defending human lives against the unjust aggressor” (previous 1997 version of CCC 2267). The revised teaching now calls the death penalty “inadmissible” in light of “an increasing awareness of the dignity of the person,” “a new understanding . . . of the significance of penal sanctions imposed by the state,” and the development of “more effective systems of detention . . . which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.” (new 2018 version of CCC 2267)
Anti-Francis critics argue that this new doctrinal development contradicts previous Church teaching and, therefore, should be dismissed. To answer this charge, many articles have been written (for example, see here, here and here) that correctly explain the continuity of Francis’ revision with the teachings of his two predecessors, who sought to abolish the death penalty worldwide.
These apologists, however, tend to focus their attention on Francis’ continuity with St. John Paul II (JP2) and Benedict XVI, not with the remainder of the Church’s Magisterium. Previous magisterial declarations on the matter, stretching as recently as Venerable Pius XII, appear to be much more lenient regarding the death penalty’s applicability. A legitimate question is therefore asked: Can the Church contradict Herself? If so, why should I listen to Her? If the Church can be wrong on this teaching, and change it, then maybe She can be wrong about a myriad of other issues. Perhaps we don’t need to assent to Church teachings on moral and social issues, but simply wait for them to change in our favor (or even lobby for it), as happens in any human institution.
On the other hand, Cardinal Ladaria of the Congregation for the Doctrine of the Faith has stated 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.” In other words, continuity is being actively sought by Pope Francis and his close advisors.
It would be helpful, therefore, to explore the rich history of the Church’s doctrine on the matter to find responses to these pertinent objections from papal detractors. Additionally, I explored a biblical precedent on the issue that is frequently overlooked.
1. Hardness of heart and provisional laws
In the Gospel, we read how the Pharisees (who had an idolatrous concept of the Law) tried to ensnare Jesus Christ by questioning Him about divorce. We read:
“And there came to him the Pharisees tempting him, and saying: Is it lawful for a man to put away his wife for every cause? Who answering, said to them: Have ye not read, that he who made man from the beginning, Made them male and female? And he said: For this cause shall a man leave father and mother, and shall cleave to his wife, and they two shall be in one flesh. Therefore now they are not two, but one flesh. What therefore God hath joined together, let no man put asunder.
They say to him: Why then did Moses command to give a bill of divorce, and to put away? He saith to them: Because Moses by reason of the hardness of your heart permitted you to put away your wives: but from the beginning it was not so. And I say to you, that whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery: and he that shall marry her that is put away, committeth adultery.”
As we can see, Jesus seems to contradict the Mosaic Law, which specifically allowed for divorce (cf. Dt 24:1). The Pharisees certainly thought that this teaching from the Christ was a blatant and self-evident contradiction with perennial and unchangeable tradition. However, we also know that Jesus said that He did not come to abolish the Law, but to fulfill it, so that not one jot or tittle of the Law could be altered (Mt 5:17-18).
It is interesting that the vast majority of those who advocate for the death penalty on the grounds of continuity with past magisterial statements are also fierce adversaries of our current divorce culture, which they rightfully perceive as contradictory with Christ’s teaching as enunciated above. They do not seek, nor do they struggle with continuity between Jesus’ teachings and the Mosaic allowance for divorce, even if both are inerrantly inscribed in Scripture.
This is because the Church teaches that Jesus Christ is the authoritative interpreter of the Law. (This is not unlike how the Pope, acting as Vicar of Christ, has the authority to pronounce doctrinal judgments and to make disciplinary decisions in the Church. [CCC 553]) Therefore, Catholic death penalty advocates acknowledge Jesus’ apparent overruling of the Old Testament’s divorce law.
Jesus justifies this change in the law by stating that Moses only allowed divorce by “reason of your hardness of heart.” This suggests that there are times when God tolerates some evil on account of the faithful’s stage of development, as we deepen our knowledge of God’s law. However, when the time comes when we reach a sufficient level of development and recognize that an evil is intolerable (inadmissible?), then we may recognize, through legitimate authorities, that God is asking us to do away with an older formulation of a teaching because it may become a stumbling block in our evolution towards a more perfect understanding and living out of His Gospel.
An accurate understanding of how doctrine develops should, therefore, be able to assist us when we look at a specific topic and distinguish what in it contains an element of eternal truth (and, therefore, immutability) and what is provisional on the best efforts of the faithful to live out the Gospel mandate at a certain time, but which may be an obstacle for a deepening of the understanding of this same Gospel if we cling too much to it (thus becoming “hardness of heart“.) For example, we believe the Old Testament is inspired, but as Christians, we draw from it a moral code on how to conduct ourselves, while ignoring the penal sanctions (which were contingent on a historical context that cannot be extrapolated to all situations at all times.)
How do we do make this distinction? Again, Jesus Christ provides the answer in our divorce example:
2. Going back “to the beginning” — re-focusing tradition
When Jesus Christ says the Mosaic allowance for divorce was created “for the reason of your hardness of heart,” He also says: “but from the beginning it was not so.” He goes on to invoke the Genesis account, of man and woman cleaving together and becoming one flesh, as precedent to what He’s talking about.
In other words, He appeals to a tradition more ancient than the one of Moses. He points to something that is even more pristine and closer to the source: The true Tradition, which traces its roots “back to the beginning.“
As the centuries went by, God had to deal with His Chosen People’s hardness of heart by supplementing this Tradition with a series of laws to guide them into a more righteous behavior. For example, “an eye for an eye” (Lev 24:19-21) was a significant breakthrough in morality in that it meant that punishment had to be proportional to the crime. It was more humane at the time than the alternative: disproportionate vengeance. However, God never meant “an eye for an eye” to be the final word, as He Himself tells us when He saw that mankind was ready to receive a third alternative: Christian charity (Mt 5:38-42).
On the other hand, the Pharisees had introduced layers upon layers of their own human interpretations to the foundation of God’s unchangeable Law. They thought such “traditions” were basic tenets of the faith. They didn’t have the authority to turn those personal interpretations of theirs into immutable doctrine, but they weren’t able to distinguish their own man-made traditions from God’s law, and resisted God’s own authority to reform the laws according to His wisdom. By doing so, however, these Pharisees lost track of the reason why such laws were there in the first place. For many, the laws became self-referential, and the realities such laws pointed to were forgotten.
In evaluating such laws, “going back to the beginning” is a very good idea, because it allows us to parse what is provisional and secondary from what is truly foundational. A re-focusing of tradition, if you will.
By “going back to the beginning“, Jesus salvaged a part of doctrine which was more important than allowing divorce. He retrieved what would become the foundation for Christian doctrine on conjugal love, which later allowed us to see it as a Sacrament of God’s grace.
Following in the footsteps of Christ, St. John Paul II issued his Theology of the Body catechesis, where he examines the Genesis account step by step, providing us with insights on human sexuality, conjugal relationships, and the Sacrament of Holy Matrimony. By doing so, he proved to be a true disciple of Jesus Christ, for He taught us to “go back to the beginning” as a way to better understand tradition and doctrine.
Can we do the same for the death penalty?
3. Killing – a logic contrary to the Gospel
First of all, we should see if the death penalty may in fact be read in light of the divorce precedent I have laid out. In an address which foreshadowed the current CCC revision, Pope Francis said that the death penalty is “per se contrary to the Gospel.“
Death penalty apologists, eager to shift the debate into their own terms to better control the discussion, quickly jumped to the conclusion that this meant Francis postulated the death penalty to be “intrinsically evil” (i.e. never permissible in any situation.) Nevertheless, what Francis said is what Francis said: not that capital punishment is intrinsically evil, but that it is contrary to the Gospel.
This is, in my view, factual. The only instance (that I’m aware of) of a case of death penalty in the Gospel (apart from the Crucifixion that victimized Jesus Himself — an innocent man, I remind you) is the episode where the Pharisees asked Jesus to judge on the legitimacy of carrying out the death penalty, as mandated by Mosaic Law, on an adulteress caught red-handed (Jn 7:53-8:11).
Jesus Christ doesn’t overturn the Mosaic law in such a clear way as before, but we can still grasp His preference. By saying “Let he who is without sin cast the first stone,” He clearly asks us to show mercy to those who err, for we all err all the same (and I may remind you that the eternal penalty for sin, any sin, would be eternal death, but for the salvation Christ won for us.) This seems to parallel Jesus’ warnings according to which we shall be judged with the same measure we ourselves judge others (Mt 7:2), and that those who kill by the sword shall die by the sword (Mt 26:52).
The logic of the Gospel doesn’t seem to be one of exacting revenge (not even a lawful one), but of “turning the other cheek” (Mt 5:38-39). It is part of the Beatitudes to be meek, merciful and a peacemaker (Mt 5:5,7,9). In fact, the Gospel’s logic seems to be so radical as to equate merely being angry with a brother with killing him in one’s own heart (Mt 5:21-22).
On the other hand, it can’t be denied that there are portions of the Gospel where Jesus Christ seems to advocate some kind of violence (cf. Lk 22:36; Mt 10-34), though the context and literary style of those passages seems to suggest to me He was talking in a more figurative sense here. Even still, which of these two mutually exclusive attitudes is more in line with the Gospel? And which one should guide the development of doctrine?
If we learned something until now, is that if we want to understand what’s truly foundational, we should “go back to the beginning.“
4. In the beginning – murder and punishment
Going back to the book of Genesis, we can see that both man and woman were created in God’s image and likeness. This means that every human being is in the image of God, thus granting him/her infinite dignity (the dignity that comes from God.)
However, another lesson we get from Genesis is that as soon as man and woman rejected God — as soon as Original Sin entered our human condition — the very first thing that happens… is death coming into the world. And the first recorded human death came in the form of murder, thereby highligting the connection between death and sin.
The very first person to die after the eating of the forbidden fruit was not Adam, nor Eve. No, death first struck the next generation. Their son Cain murdered Abel, his brother, out of jealousy.
Nevertheless, God does not punish Cain with the death penalty, even if He had all the right to do so. Life is God’s gift after all, and His is the prerogative to give it or take it away. But as JP2 explains:
“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.'”
— Evangelium Vitae (EV), Chap 1, #7
By “going back to the beginning,” we can see that the first murderer was spared the death penalty. Indeed, he was protected by God so that others would not exact violence against him for his crimes. JP2 draws from this primordial account an important lesson: “not even a murderer loses his personal dignity.” (i.e., the dignity conferred, per Genesis, by Man’s creation in the image and likeness of God.)
5. Evilness of lawful killing – a forgotten but well-established tradition
Death penalty apologists may retort that the Bible does not exhaust itself in Cain… but that there are multiple biblical instances where the Chosen People rightfully exacted death on evildoers, either through capital punishment, or self-defense, or just war.
I would like to point out, however, that these cases happened much later, so I would hesitate to use them as “in the beginning” examples. Apart from Adam, Eve, Cain and Abel’s historical existence (which I believe is real), they fulfill a much vaster role: their primordial and original position in the History of Salvation turns them into archetypes. In other words, these characters transcend themselves, so that they now represent the whole mankind. JP2 says of Cain and Abel: “This first murder is presented with singular eloquence in a page of the Book of Genesis which has universal significance: it is a page rewritten daily, with inexorable and degrading frequency, in the book of human history” (EV, Ch 1, 7)
Later accounts, written after nations and codes of laws were established, already happened at a time when the “hardness of hearts” forced God to allow some concessions, so that the righteous would not be slaughtered by the evildoers in an age filled with primitive cruelty and barbarism. These are not, however, representative of the human condition as the events in Gen 1-4 are.
Nevertheless, even in these later accounts, we can see that things are not as straightforward as they seem. When King David asks to build a Temple to God, he is denied. His son Solomon, on the other hand, is allowed to do so. Why? The answer lies in the Bible itself:
“And David said to Solomon: My son, it was my desire to have built a house to the name of the Lord my God. But the word of the Lord came to me, saying: Thou hast shed much blood, and fought many battles, so thou canst not build a house to my name, after shedding so much blood before me”
— 1 Chron 22:7-8 (DRV)
We must remember, the deaths mentioned here were lawful killings, not murders. We know David was not a bloodthirsty individual: he was hesitant to take a life, even if it was that of an enemy or political adversary. The wars he waged and the death penalties he inflicted were lawful and necessary, according to Scripture itself. And yet, even if those killings seemed to be God ordained, they were an impediment for David to be worthy of building the Lord’s temple.
This started a tradition which extended right into the Catholic Church’s time. In the Early Church, soldiers were not allowed to be catechumens, unless they abstained from killing (cf. Hypolitus of Rome, Apostolic Tradition.) And even as late as the last century, the 1917 Code of Roman Law forbade executioners and judges who imposed the death penalty from being ordained to the priesthood.
“The spirit of the sacred ministry is a spirit of mercy and forgiveness, wherefore the Church declares it improper to raise to the sacred ministry a person who has concurred in procuring the execution of a man, no matter how legitimate and guiltless such action may have been.
From the earliest times of the Church, men who have shed human blood, even apart from any guilt, were refused admission to the sacred ministry”
— Woywod & Smith Commentary on Canon Law, p. 598, 1957 AD
It seems like, even when it is lawful, the act of killing has a profound effect on the one performing the killing. Lawful killing is evil, even if morally permitted or necessary at times. It darkens the soul in a way that does not allow it to touch God’s deeper nature.
From this I draw a very bold conclusion: I do believe that killing is intrinsically evil, even if it is not intrinsically evil in the way we usually use this word. When we say “intrinsically evil“, we mean an act which can never be justified, regardless of circumstances. But even if an act is not (morally) intrinsically evil, it can be inherently evil out of its own nature (i.e., never be a moral good, even if justified sometimes.)
To illustrate what I mean, I will borrow a very helpful analogy I read from Fr. Angel Sotelo: lawful killing is like amputating a sick limb; it may be needed in a desperate situation, but it can never be deemed as a good in itself; amputating a limb may never be good, for no healthy person does it unless it’s really necessary. How irrational can it be, therefore, if a person advocates for amputating limbs, even when it is not necessary, just because there are some times when it is? Imagine Medicine had evolved so much that we didn’t need to amputate a limb anymore… Would we cling to the amputation procedure then? Would we have to condemn the ones who performed amputations before such a breakthrough?
In this sense, I think that Pope Francis and death penalty apologists are talking in different planes, which can easily be reconciled. But in order for such a reconciliation to take place, the death penalty apologists would have to forego their exaggerated focus on the “intrinsically evil” language (as classically defined), since that is not what’s at stake. Neither is it constructive to keep equivocating the clear (though not technical) term “inadmissible“, since that is precisely the wording Francis has chosen to sidestep the “intrinsically evil” aspect of this debate. Such tactics on the part of death penalty apologists seem to me to be desperate, lawyerly attempts to justify their dissent against this Church teaching… An attitude that prompted Pope Francis to issue this revision in the first place (since those same apologists were using the “rare, practically non-existent” concessions from JP2 as a loophole, turning the exception into a rule and ignoring the Pope’s petition for abolition.)
6. Human dignity – a foundational Christian doctrine
Why is lawful killing considered evil? The answer may actually lie in one of the Church’s most pro-death penalty quotes (emphasis mine):
“The murderer is the worst enemy of his species, and consequently of nature. To the utmost of his power he destroys the universal work of God by the destruction of man, since God declares that He created all things for man’s sake. Nay, as it is forbidden in Genesis to take human life, because God created man to His own image and likeness, he who makes away with God’s image offer great injury to God, and almost seems to lay violent hands on God Himself”
— Roman Catechism of Trent, On Capital Punishment
In other words, the reason why taking away a human life is such a great crime (even allowing for such a punishment as the death penalty) is precisely because taking a human life is to lay violence against a being created in the image and likeness of God.
In the Bible also, in another pro-death penalty quote, we can find validation for this thesis:
“Whosoever shall shed man’s blood, his blood shall be shed: for man was made to the image of God“
— Gn 9:6 (DRV)
Again, we find that killing is wrong because it destroys an image of God.
However, can we not also say that the murderer was created in the image and likeness of God? Yes, we can… and we must. Being a part of the human race, the murderer also shares from the same human dignity he attacked with his crimes.
It is important to note that I have not been able to find a single magisterial quote supporting the death penalty that teaches that a murderer loses his human dignity on account of his crime. At most, there is an emphasis in the classically Thomistic notion that the murderer has forfeited his right to live, but that is not the same as saying he does not enjoy human dignity.
One cannot explain God’s rejection of David as Temple-builder, or the Church’s rejection of lawful takers of human life to the sacred ministry, if those who are lawfully killed have no human dignity. If the death penalty is just like a cow going to the slaughter, then why would it have any impact on whether someone could perform the most sacred duties before God?
Therefore we see here, in a most ancient and venerable tradition of the Church, the seeds of what has become the “increased awareness of the dignity of the human person” that Pope Francis invokes to justify his CCC revision. This increased awareness of human dignity was not something Francis made up out of thin air, but was already enshrined into the magisterial teaching of the Church by his predecessor JP2:
“Not even a murderer loses his personal dignity, and God himself pledges to guarantee this.”
— EV, Chap 1., 7
“If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more (…) in conformity to the dignity of the human person”
— 1997 CCC version of paragraph 2267
7. Death penalty – What’s provisional and what’s foundational
In the case of divorce, Jesus was able to distinguish between what in the Law was merely provisional, and what aspects of the Law were foundational. The provisional laws were limited to certain historical contexts and don’t make sense apart from them. These were also secondary, for there is nothing foundational to Christian doctrine in the legitimacy of issuing divorce bills. On the other hand, what was truly foundational was a proper understanding of the true indissoluble nature of the institution of marriage, on account of its original and natural dignity. When the provisional laws threatened foundational teachings on account of man’s “hardness of heart,” Christ did away with them. This was an irreversible development; man cannot unlearn what he has learned, nor will God invert the path He laid in the History of Salvation ordered toward a progressively greater fulfillment of His Gospel. On the contrary, the previous teachings should be read in light of the developed ones, just like the Old Testament can only make sense by being read in light of the New Testament.
We can see a parallel situation with the death penalty. Contrary to what many dissenters have said in many articles, support for the death penalty is not foundational to the Christian faith. It is not a basic tenet which, if changed, would radically alter the meaning of Christianity. It is a secondary teaching. It is also contingent on many changeable parameters, namely whether the state has at its disposal other means to achieve the same effects as capital punishment in protecting the innocent, as is seen by the following pro-death penalty magisterial sources (emphasis mine):
“Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise 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 the Commandment is the preservation and security of human life. Now the punishments inflicted by the 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. “
— Roman Catechism of Trent, On Capital Punishment
“The death sentence is a necessary and efficacious means for the Church to attain its ends when rebels against it disturb the ecclesiastical unity, especially obstinate heretics who cannot be restrained by any other penalty from continuing to disturb ecclesiastical order”
— Pope Leo XIII, Preface to vol. 2 of “Book of Canon Law”
If there are other ways besides the death penalty to achieve these goals, then the pro-death penalty strength of these quotes is lost. And, in fact, it was precisely this reasoning that JP2 used to develop the teaching:
“Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm – without definitely taking away from him the possibility of redeeming himself – the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically nonexistent””
— 1997 CCC version of paragraph 2267
Pope Francis simply elaborates into JP2’s point even further:
“More effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.”
— current CCC version of paragraph 2267
Can a teaching whose applicability is so variable and context-dependent really be so foundational to Christian doctrine? I don’t think so.
What is foundational then? Can anyone deny that the doctrine of human dignity (even of a criminal) is a much more central tenet of the Christian doctrine? Certainly not, for the inviolable dignity of the human being, bearer of the image and likeness of God, permeates all Christianity, from the Incarnation dogmas to the prohibition of abortion and euthanasia.
Therefore, if the secondary, context-dependent teaching on the death penalty somehow starts to conflict with the foundational doctrine of human dignity, especially if mankind has already achieved a sufficient understanding of human dignity to merit behaviors more in keeping with the Gospel’s logic, it is Pope Francis’ prerogative (and duty) to use his authority to develop this doctrine into its final logical step and do away with divine provisions made only by reason of Man’s hardness of heart.
Pope Francis’ new revision of the CCC, contrary to what has been asserted by many dissenters, does not contradict immutable doctrine. In fact, it dovetails very nicely with previous teachings, even if that doesn’t seem apparent at first sight (as is common with legitimate developments.) We only find unsolvable contradictions if we insist (like dissenters usually do) in equivocating different concepts, like “inadmissible” with “intrinsically evil,” or “forfeit the right to live” with “lose human dignity.”
It is undeniable that Pope Francis’ new teaching is a development in doctrine. Where previous Church teaching allowed for the death penalty (even though increasingly with more and more stringent restrictions), Francis has now made it perfectly crystal clear that it is completely unacceptable for a contemporary Catholic to be in favor of capital punishment.
People who defend the death penalty usually refer to Pope Benedict XVI’s concept of “hermeneutic of continuity” to rail against any Church teaching they deem as “discontinuous” with previous teachings. They forget, however, that Benedict never used the term “hermeneutic of continuity,” but rather “hermeneutic of reform (in continuity).” In other words, even if continuity is there (and I hope this article has proven it beyond a doubt), there must be reform. Where there is reform, there are practices and ideas that are abandoned during the process. As long as the immutable core remains untouched, then the development is legitimate.
What is this immutable core? The foundational Christian doctrine on human dignity, even for the greatest sinner. Francis’ CCC revision does not contradict this. Idolatrously clinging to support of the death penalty, however, may indeed contradict the central Christian tenet of human dignity, since it may expose a human being to unnecessary destruction. By revising the CCC, Francis is, in fact, safeguarding the unchangeable nature of Christianity against those who are attacking it with the excuse of protecting it.
In this regard, I think Pope Francis’ anti-death penalty stance is, in fact, one paradigmatic example of how a doctrine can be developed through an hermeneutic of reform in continuity.
[Photo credit: Painting “Jesus and the Woman caught in adultery”, Isaak Asknaziy, 19th century]