The text of
the revision, at paragraph 2267 of the Catechism, reads as follows:
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.
End
quote. The crux of this passage is the
statement that “the death penalty is inadmissible because it is an attack on
the inviolability and dignity of the person.”
Turner identifies three basic ways to interpret this.
Three interpretations
The first
would be to read it as teaching that capital punishment is intrinsically
immoral. This would amount to an
outright reversal of the traditional doctrine of the Church, and thus an
endorsement of the position of “new natural law” theorists like Germain Grisez,
John Finnis, and E. Christian Brugger, who have long argued for such a
reversal. Turner rejects this
interpretation. In a letter announcing
the change to the Catechism, Cardinal Ladaria, Prefect of the Congregation for
the Doctrine of the Faith, stated that the revision was not in contradiction
with prior Church teaching and instead reflected a change in historical
circumstances. As Turner points out, he
could not have said this if the revision had been intended as an endorsement of
the view of Grisez, Finnis, and Brugger that past teaching was wrong and that
the death penalty is intrinsically evil.
(It is worth
noting that Finnis, despite his own view that capital punishment is
intrinsically immoral, agreed that the revision did not change past teaching
and was
very critical of the reasoning behind it. In any event, as Joseph Bessette and I show
in our book By
Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment,
the arguments of Grisez, Finnis, and Brugger fail, and their position cannot be
reconciled with Catholic orthodoxy. Turner
indicates that he agrees with us about this much.)
A second
interpretation of the revision identified by Turner would be to regard it as an
erroneous or at best imprecise prudential application of Catholic
teaching. As Turner points out, this
interpretation cannot be dismissed out of hand, because the revision falls into
the category of non-definitive acts of the ordinary Magisterium. Moreover, if the revision is not intended to
contradict past doctrinal principles and reflects instead a change in judgement
about how to apply those principles to concrete circumstances, then this
current judgement could, in the nature of the case, hardly be more definitive
than the past judgments it replaces.
Toward the
end of his essay, Turner identifies several respects in which Pope Francis’s
teaching on this subject is indeed problematic.
However, the bulk of the essay is devoted instead to exploring a third
possible interpretation of the revision to the Catechism. On this interpretation, the revision, on the
one hand, does not reflect any change in the fundamental doctrinal principles
concerning capital punishment. It
remains Catholic teaching that the state has the right in principle to execute
offenders for sufficiently grave offenses.
But on the other hand, the revision is more than merely a prudential
application of these fundamental principles to concrete contemporary
circumstances. It is a prudential
judgment of a deeper kind than that, one concerning what the Thomistic natural
law tradition calls the ius gentium
or “law of nations.”
The law of nations
The law of
nations is a middle ground level of moral principles, coming in the between the
fundamental and immutable principles of natural law on the one hand and the
various local laws and customs of individual political communities on the
other. Its function is to mediate the
application of the former to the latter.
Like local laws and customs, it is contingent and changeable. Unlike them, it has universal application,
and a higher degree of durability even if it falls short of strict
immutability. It is a kind of
conventional wisdom about how best to apply the principles of natural law, and widely
regarded as more or less settled even if not infallible.
Turner
offers a few examples, including the practically universal agreement today that
subjecting those defeated in a just war to servitude is not morally
acceptable. Even if such servitude were
theoretically justifiable as punishment of those guilty of unjust aggression,
the moral downside of such a practice is so grave that it is better simply to
rule it out as beyond the pale in a decent society. As Turner notes, a change in the law of
nations (such as the change from permitting this kind of servitude to
abolishing it once and for all) can reflect not merely a change in
circumstances, but a deeper application of distinctively Christian moral
principles.
Now, there
is a further distinction to be drawn here, because as Turner also notes, there
are, within the Thomistic natural law tradition, two ways that the ius gentium has been interpreted. On the first interpretation, the law of
nations is concerned with entirely man-made principles that are practically
indispensable for applying the natural law.
The ius gentium is, on this
view, essentially a matter of positive law rather than the discovery of anything
strictly there in natural law itself.
Turner associates this interpretation with thinkers like Francisco de
Vitoria, Domingo de Soto, Melchior Cano, and Domingo Banez. On the second interpretation, the ius gentium goes a bit deeper than this,
and involves the discovery of what justice strictly requires given certain
civilizational conditions. Turner
associates this interpretation with thinkers like Jacques Maritain and Yves
Simon.
The basic
idea here (as I understand it) is that on the second interpretation, the
principles of the ius gentium are absolutely binding given certain conditions; whereas on the first interpretation, they
are never absolutely binding but can
nevertheless be, under certain conditions, binding for all practical purposes (and to such an extent that it is as if they were absolutely
binding). Either way, as Turner points
out, the ius gentium reflects a moral
conventional wisdom that runs so deep
that it can “feel” as binding as the natural law – even to educated people who
know the difference, and certainly to the average person who does not.
Turner’s
proposal, then, is that the revision to the Catechism reflects a prudential
judgment about the law of nations,
specifically. In particular, it reflects
the judgment that, in light of both the adequacy of contemporary non-lethal
means of protecting society and the higher demands of the Gospel as applied to
the law, the principle that resort to capital punishment is never justifiable
in practice ought now to be regarded as part of the ius gentium. Turner also
indicates, though, that this is better understood in terms of the first
interpretation of the ius gentium
(i.e. the one associated with de Vitoria, de Soto, Cano, and Banez) rather than
the second, stronger interpretation (i.e. the one associated with Maritain and
Simon). For the latter interpretation
might give the impression that the Magisterium was teaching grave error prior
to the 2018 revision.
Still a flawed prudential judgment?
As Turner
notes, though this interpretation attributes to the revision a deeper alteration
to the Church’s teaching than most prudential judgments involve, it still
amounts to a kind of prudential judgment, and a non-definitive one that is
arguably problematic in several respects.
All the same, it is, in his view, the most plausible understanding of
what the revision intends –namely, something less radical than a doctrinal
reversal or development, but more radical than other prudential judgments tend
to be.
As an
interpretation of the pope’s and the CDF’s intentions, Turner’s view seems to
me interesting and plausible. And it may
be the only plausible way to read the statement that “the death penalty is
inadmissible because it is an attack on the inviolability and dignity of the
person” in a manner that rescues it from the charge of doctrinal error. For the appeal to “the inviolability and
dignity of the person” gives the impression that the problem with capital
punishment goes beyond mere
contemporary circumstances – and thus involves some intrinsic evil. The ius gentium interpretation opens the
door to a middle ground reading, on which the problem does go beyond
contemporary circumstances but nevertheless does not entail intrinsic evil.
But even if
this is indeed the Catechism’s position, it doesn’t follow that that position
is well-founded or unproblematic. And in
fact it is neither. Turner himself notes
several problems with it. One of them is
that the assumption that capital punishment is absolutely never needed today for the protection of society is undefended and
open to serious objections. Turner
notes, for example, that without the deterrent effect of capital punishment,
some prisoners are threats to the lives of fellow prisoners and of prison
guards. In a
recent article, I discussed other ways in which the total abolition
of capital punishment threatens innocent lives.
In that case, though, incorporation of such an abolition into the ius gentium could hardly facilitate a
more just society.
A second
problem noted by Turner is that Pope Francis’s frequently reiterated position
that life sentences should be abolished partially undermines the rationale for
the Catechism’s revision. For the claim
that capital punishment is unnecessary today for the protection of society
rests on the idea that locking the most dangerous offenders up indefinitely
provides an alternative way to incapacitate them. (As I
have argued elsewhere, there are also other serious problems with
this particular teaching of the pope.)
A third
problem identified by Turner concerns the revised Catechism’s appeal to “a new
understanding… of the significance of penal sanctions imposed by the state.” It is not clear exactly what is meant by
this. Is the claim that retributive
justice is no longer among the considerations to be weighed when deciding what
punishments are suitable? Turner notes
that this would contradict the traditional teaching of the Church – and as Joe
Bessette and I show in our book, the teaching that retributive justice is among
the purposes of punishment is also irreformable.
It is worth
adding that Pope Pius XII, who taught more systematically and at much greater
length about the topic of punishment and criminal justice than any other pope,
explicitly addressed the view that modern times call for a new understanding of
punishment that deemphasizes retribution and emphasizes instead the protection
of society and rehabilitation. And he explicitly rejected this position as
contrary to scripture and the traditional teaching of the Church. See pp. 128-34 of By Man Shall His Blood Be Shed, which quotes extensively from the
relevant documents.
If the
revision of the Catechism is taking the opposite view, we would have a
contradiction between Pius XII’s teaching and Francis’s teaching. But Pius XII’s teaching is very clear, is
expounded and defended in detail, and is firmly grounded in scripture and
tradition. But Francis’s teaching on the
purposes of punishment – if indeed
that teaching is meant entirely to abandon retributive justice in favor of
rehabilitation and the protection of society (which is not obvious) – is not
clearly expressed, is merely asserted rather than supported with arguments, and
is difficult to reconcile with scripture and tradition.
These
problems, which Turner himself acknowledges, are serious enough. But there are yet other grave problems with
the view that the ius gentium should
now be understood as absolutely ruling out the death penalty in practice. The revision to the Catechism says that
“today… there is an increasing awareness that the dignity of the person” rules
out such a penalty. But is contemporary
opposition to capital punishment in fact generally motivated by an increased
awareness of human dignity? Does it
reflect moral common ground between the Catholic faith and the secular world?
Some of the
most influential contemporary Catholic opponents of capital punishment
themselves acknowledge that that is the opposite of the truth. For example, Finnis warns:
We should be under no illusions: the
organs of the European Council, the United Nations, and the European Union,
unconcerned to exclude from human society all intent to kill, and disdainful of
God’s lordship over life and death, are devoted to the opaque language of
dignity. They deploy it constantly, bureaucratically, to promote their
rejection of capital punishment but equally their indulgence towards
euthanasia, suicide, and the many forms of anti-marital sex, and the radically
unjust promotion of gender fluidity and same-sex parodies of marriage. And the educational institutions and programs
they promote are nearly unanimous in denying or ignoring the justice of
retribution, with its attention to the continuing and often justly decisive
relevance of past deeds to present entitlement and conduct, attention and
relevance essential to the truth of the Christian faith.
Similarly, Cardinal
Avery Dulles, who supported the abolition of the death penalty, acknowledged
that most opposition to capital punishment today reflects, not
deeper moral insight but a move away from Christian morality:
Many governments in Europe and
elsewhere have eliminated the death penalty in the twentieth century, often
against the protests of religious believers.
While this change may be viewed as moral progress, it is probably due,
in part, to the evaporation of the sense of sin, guilt, and retributive justice,
all of which are essential to biblical religion and Catholic faith. The abolition of the death penalty in
formerly Christian countries may owe more to secular humanism than to deeper
penetration into the gospel.
Arguments from the progress of
ethical consciousness have been used to promote a number of alleged human
rights that the Catholic Church consistently rejects in the name of Scripture
and tradition. The magisterium appeals
to these authorities as grounds for repudiating divorce, abortion, homosexual
relations, and the ordination of women to the priesthood. If the Church feels herself bound by
Scripture and tradition in these other areas, it seems inconsistent for
Catholics to proclaim a “moral revolution” on the issue of capital punishment.
End
quote. Nor is the connection between
opposition to capital punishment and hostility to Catholic morality a recent
phenomenon. As Brugger acknowledges,
when the modern movement to abolish capital punishment got started among
European intellectuals two centuries ago, it was closely associated with
various doctrines at odds with Catholicism, such as utilitarianism and
skepticism about the afterlife. Hence,
he writes:
The early organized public efforts to
eliminate (or limit, with a view to eliminating) capital punishment, at least
for ordinary or “lesser” crimes, were almost exclusively secular
phenomena. Early spokesman for the cause
include Montesquieu, Voltaire, Robespierre, and Diderot in France, Hume and
Bentham in Britain, and Fichte in Germany – all harsh critics of the Catholic
Church and its orthodox teaching… [The] social movement to abolish capital
punishment… became associated in the minds of many Catholic thinkers with
opposition to orthodox belief and to the Church. (Capital Punishment and Roman Catholic Moral Tradition, pp. 130-31)
In short,
while the increase in opposition to the death penalty in modern society does
indeed reflect a moral revolution, it is precisely a revolution away from the Catholic understanding of
human dignity, not a deeper appreciation of it.
Now, the
revision to the Catechism offers three justifications for the change: (a) “an
increasing awareness [of] the dignity of the person,” (b) “a new understanding…
of the significance of penal sanctions imposed by the state,” and (c) “more
effective systems of detention… which ensure the due protection of citizens”
without recourse to capital punishment. But
as we have just seen, all three of these are seriously problematic.
And there is
yet another serious problem with the revision.
Again, the statement that “the death penalty… is an attack on the
inviolability and dignity of the person” seems,
considered in isolation, to be saying that capital punishment is intrinsically
evil. To be sure, it need not be read
that way, and there are good arguments for not reading it that way. But it takes theological learning and
analytical skill to see that. To the
average person, the statement seems to be lumping capital punishment in with
abortion, euthanasia, and murder in general.
Much of the other recent rhetoric of popes and bishops has the same
effect. And while popes John Paul II and
Benedict XVI at least occasionally qualified these statements by explicitly
acknowledging that capital punishment is not intrinsically evil, Francis does
not do so. Indeed, he and other bishops
have ignored pleas
for clarification.
The problem
with this is that the Church now thus appears
to many people to be contradicting the teaching of scripture and of her own
past Magisterium. For orthodox
believers, this can cause a crisis of faith.
Meanwhile, heterodox Catholics are emboldened, hopeful that a change in
teaching on capital punishment will open the way to changes to other
traditional teachings. Again, the
revision does not actually have the implications that orthodox believers fear
and that the heterodox welcome. But
Catholics should not have to have
special theological expertise in order to see this. For a magisterial document to require such
expertise in order to see its continuity with scripture and tradition is thus a
serious defect.
As I
have discussed in detail elsewhere, the CDF instruction Donum Veritatis and the tradition of the
Church acknowledge that non-definitive acts of the Magisterium can sometimes be
defective in this way, and may, accordingly, be met with respectful
criticism. I submit that the revision to
the Catechism provides as clear an example as there has ever been of a case
where the norms of Donum Veritatis
apply.
A binding prudential judgment?
There is one
further question to address. Again,
Turner takes the revision to amount to a non-definitive prudential judgement,
and acknowledges that it is problematic.
Now, some prudential judgments require only respectful consideration by
the faithful, but neither assent nor obedience.
Cardinal Ratzinger, acting as head of CDF, stated in a
2004 memorandum that papal opposition to capital punishment was an
example of such a prudential judgment.
But as Cardinal Dulles noted in his book Magisterium: Teacher and Guardian of the Faith, there can also be
prudential judgments which “require external conformity in behavior, [even if
they] do not demand internal assent” (p. 94).
He gives as an example past Vatican instructions to theologians
concerning which methods of biblical exegesis were permissible. Some such restrictions, says Dulles, were
excessive and later relaxed. But though
some theologians even at the time may have had good reasons for disagreeing
with the restrictions, they were nevertheless obligated to abide by them in
their published work. (For a detailed
treatment of the different kinds of magisterial statement and their levels of
binding force, see pp. 144-57 of By Man
Shall His Blood Be Shed.)
Now, some
might argue that even if the revision to the Catechism is flawed, and even if
Catholics are permitted respectfully to raise criticisms of it, it nevertheless
requires “external conformity in behavior” (to borrow Dulles’s phrase). In particular, it might be claimed that the
permission to support the actual use of capital punishment that Cardinal
Ratzinger affirmed in the 2004 memo has now been rescinded. Hence, it might be argued, every Catholic
public official must now work to implement a policy of abolition of capital
punishment, even if he is at liberty to think this policy mistaken.
It seems
this might be Turner’s view, though this is unclear. He notes that the precepts of the ius gentium, though they lack the
absolutely binding character of the precepts of natural law, are nevertheless
“existentially indistinguishable from the precepts of the natural law to the
common person in any given age” (p. 1047).
That is to say, in practice
they are generally perceived as having the force of natural law, even if
strictly speaking they do not. And
Turner later goes on to say that with respect to the abolition of capital
punishment, the pope “is within his office to make such a prudential judgment
and to enshrine that judgment in the Catechism
as existentially binding” (p. 1049).
This characterization of the revision as “existentially binding” seems
to imply that Catholics are obligated to conform their behavior to it even if
they may raise legitimate questions about it – though again, Turner does not
say this in so many words.
In any
event, there is a serious problem with this interpretation, which I spelled out
in a
recent article. The
Catechism, in line with the traditional teaching of the Church, states that war
can be justifiable when necessary to protect citizens against violent
aggression. But it also states that the
responsibility for making a prudential judgment about when the criteria for
just war are actually met lies with public authorities. The reason is that it is public authorities
(and not churchmen) who have the duty under natural law to protect citizens,
and it is public authorities (and not churchmen) who have the relevant expertise
concerning how best to do this.
Now, when
addressing capital punishment, the Catechism – both in the versions promulgated
by Pope St. John Paul II and in Pope Francis’s revision – states that whether
the death penalty is ever justifiable depends on whether it is necessary in
order to protect society. The difference
is that John Paul thought it was only rarely necessary, and Francis thinks it
is never necessary. But as in the case
of war, it is public authorities (and not churchmen) who have the duty to
protect citizens from violent aggressors, and public authorities (and not
churchmen) who have the relevant expertise.
Hence, in the nature of the case, it is hard to see how the Church could
make a binding prudential judgment
where resort to capital punishment is concerned, any more than she could make a
binding prudential judgment where the application of just war principles is
concerned. In the one case as in the
other, to do so would be to usurp the responsibility that the natural law puts
on public authorities, not on the
Church.
An attempt
to bind public authorities to abolishing capital punishment thus smacks of a
kind of clericalism – in particular, of an interference of the Church with the legitimate
functions of the state, which the Church has otherwise been moving away from in
the period since Vatican II. The Church
no longer calls upon the assistance of the state to safeguard people’s souls (since, it is said, the state has
no competence in that area). What sense
does it make, then, for the Church to interfere with the state’s right to protect
people’s bodies (where, the Church
says, the state does have
competence)?
Furthermore,
the revision to the Catechism has been presented as just an extension of what
John Paul II already taught and of his reasons for teaching it (such as the
adequacy of non-lethal means of protecting society and a better understanding
of human dignity). The difference,
again, is just that John Paul thought the death penalty was rarely if ever
needed and Francis thinks that it never is.
But as Ratzinger’s 2004 memo makes clear, John Paul II’s teaching was
not of such a nature that Catholics were obligated to behave in accordance with
it. So, how can Francis’s teaching,
which differs from John Paul’s in degree but not in kind, impose any stricter
obligation?
For these reasons, then, it seems to me that the claim that Catholics are obligated to show the revision “external conformity in behavior” is theologically problematic. All the same, this is, of course, not my call to make. Like the other difficulties I’ve described, it is ultimately a matter for the Magisterium of the Church to clarify. I suspect we will have to wait for a future pontificate before that happens.