A few years ago, author and philosophy professor Edward Feser wrote an essay criticizing Catholic teaching on the death penalty. His piece centers on the following question: Does Pope Francis’s teaching on capital punishment amount to a doctrinal change or merely a prudential judgment? The thrust of his argument is this: either Pope Francis has developed doctrine to declare the death penalty intrinsically evil, in which case it violates scripture and tradition. Or it is merely a prudential judgment that can be safely ignored.
This argument does not convince.
First off, this distinction between intrinsic evils and prudential judgments is problematic and offers a false binary. An action is intrinsically evil when it is evil in its object, irrespective of intention or circumstances. It is always evil and does not allow for any legitimate exception. This is an important aspect of Catholic moral philosophy and is spelled out clearly by Pope John Paul II in Veritatis Splendor.
But here’s the problem: the intrinsic nature of the evil has nothing to do with the gravity of the evil. For example, masturbation is considered to be intrinsically evil, while war is not (Catholic teaching allows that some wars can be just, even if this door gets ever narrower). Can anybody seriously argue that masturbation is more serious than Putin’s invasion of Ukraine? This is absurd. But it is the endpoint of an obsessive focus on intrinsically evil acts to the detriment of everything else. Clearly, then, the category of intrinsic evil has little applicability in the public policy space. And prudential judgements are not “get out of jail free cards” either, as Feser seems to imply. They could entail gravely evil acts (as with Putin’s war, for example).
Which brings us to the death penalty. I am willing to concede that the death penalty might not be intrinsically evil. In some past societies, it might have been simply impossible to constrain the malefactor without recourse to the death penalty. Think of ancient nomadic societies, the sort that characterized ancient Israel. But this argument no longer applies. As John Paul II argued in Evangelium Vitae, punishment “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.” He goes on to argue that: “Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”
All Pope Francis did was take this argument to its logical conclusion. This can be seen in the new wording of section 2267 of the Catechism: “Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good. Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, 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.
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’, and she works with determination for its abolition worldwide.”
Is this an authentic development of doctrine? Yes. The Congregation of the Doctrine of the Faith (CDF) was clear about this, from a note issued in 2018. This stems from an unfolding understanding of the nature of human dignity — as the CDF put it, from a “clearer awareness of the Church for the respect due to every human life.” The note affirms the direct continuity between Pope Francis’s teaching that the death penalty is inadmissible and the teaching contained in Evangelium Vitae, which “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.”
Traditionalists often argue at this point that the death penalty was once endorsed by the Church, including by many saints and doctrinal authorities. But the correct hermeneutic is to read past teaching in light of current teaching rather than vice versa. Doctrine develops in light of an unfolding understanding, the seeds of which can be discerned in past teaching (but often no more than the seeds). For example, the Church once endorsed the burning of heretics, but I don’t know anyone who would still defend this today.
Key here is the unfolding appreciation of human dignity, which is a central insight of the Second Vatican Council. For example, Dignitatis Humanae — the document on religious liberty — begins with these words: “A sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man.” This is the proper interpretive key, not only to this document but to Vatican II as a whole. A failure to appreciate this is a failure to understand the Council.
I think a comparison with slavery is instructive here. Slavery is commonplace in scripture. Some forms of slavery were also accepted by the Church over its long history, while other forms were condemned. For example, medieval papal bulls allowed for the “perpetual servitude” of non-Christians under certain conditions. The Holy Office in 1866 declared that slavery was not against the natural or divine law.
Yet the Church today considers slavery to be both gravely and intrinsically evil. This was made clear in Gaudium et Spes in its list of infamies: “Furthermore, whatever is opposed to life itself, such as any type of murder, genocide, abortion, euthanasia or willful self-destruction, whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; as well as disgraceful working conditions, where men are treated as mere tools for profit, rather than as free and responsible persons; all these things and others of their like are infamies indeed.” Here, slavery is regarded as one of the worst evils — an infamy. And there is no equivocation whatsoever. And in Veritatis Splendor, Pope John Paul II transposed this list into examples of intrinsically evil acts — again, without any equivocation. As with the death penalty, this flows from a greater appreciation of human dignity.
Finally, let me ask the question: are Catholics obliged to accept Church teaching on the death penalty? I believe so, yes. In line with paragraph 25 of Lumen Gentium, it is owed religious assent. Here is the relevant language: “This religious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff, even when he is not speaking ex cathedra.” It goes on to say that the faithful are to show that “the judgments made by him are sincerely adhered to, according to his manifest mind and will. His mind and will in the matter may be known either from the character of the documents, from his frequent repetition of the same doctrine, or from his manner of speaking.” It is clear that the teaching on the death penalty meets this standard. It is formulated in an encyclical — Fratelli Tutti. It is repeated frequently by Pope Francis (and also by Popes John Paul II and Benedict XVI, by the way). And the language is categorical.
The bottom line is that the Church teaches that the death penalty is gravely evil, as it violates the dignity of the human person. Whether it is intrinsically evil or not has little relevance. And Catholics are obliged to accept this official teaching of the Magisterium.
Image: Jesus and the woman taken in adultery .By Guercino – 1. Unknown source2. Art UK, Public Domain.