There seems to be some contention among theologians and philosophers concerning the Church's teaching on the death penalty. Some claim that the Church never definitively taught the legitimacy of the death penalty in principle. Some claim that counter-positions can be made by those in Church history who not only reject it in practice but in principle as well. While others claim it was never definitively taught that the death penalty is not intrinsically evil. Some go as far as to say that they believe the Church now teaches that it is evil, and others say that Francis' 'development' is contrary to Scripture and Tradition. Some speak of sententia communis, a view commonly held, but at the same time could the Church persist so long in teaching its legitimacy in a universal catechism? Is Pope Francis wrong or did the universal Church error? Such questions only muddies the waters of what could otherwise be a clear example of when we should apply the hermeneutic of continuity.
After reading both Fastiggi's 4 part article in whereispeter and Feser's response to Sonna's interview of Fastiggi, I have decided to make a contribution to the discussion. Most of the discussion has been centralized around questions of whether or not the Magisterium has contradicted itself, the extent to which some in the Church has supported the death penalty, and whether or not the inviolability and dignity of the person is an authentic development of doctrine. It is to address these and other concerns that will comprise the focus of this reply. In doing so I shall propose that the best way to understand the 2018 revision of CCC 2267 is to assess the Letter to the Bishops regarding the new revision. Any time we evaluate the wording of the Catechism we need to assess the source of that wording, for any statement made in a Catechism draws its authority from which it came. And in this case it is drawn from the authentic and ordinary papal magisterium of Pope Francis, building upon his predecessors John Paul II and Benedict XVI, which requires religious submission of will and intellect.
A contradiction would entail an incongruity between two opposing statements which affirm and deny the same concept in the same way and in the same sense and upon the same basis. In one sense it is being said that the traditional approach involves the legitimacy of civil authorities to utilize the death penalty, while on the other hand, it now seems to be said that use of “...the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person...” This appears to be a contradiction in the minds of some. It is my thesis that there is no contradiction or any level of incongruity between these two views.
To frame this point and to ensure that we attempt to read CCC 2267 in the manner intended, the new formulation “...is not in contradiction with the prior teachings of the Magisterium” (Letter to the Bishops, 8) and “situates itself in continuity with the preceding Magisterium while bringing forth a coherent development of Catholic doctrine” (Letter to the Bishops, 7). It should be noted, and to Feser's agreement, that Francis is referring to this traditional view as “teachings of the Magisterium”. This thesis is defended through out the letter as it affirms that “...it remains the duty of public authorities to defend the life of citizens, as has always been taught by the Magisterium...” (Letter to the Bishops, 7). The Catechism itself prefaces what follows by stating “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” (CCC 2267). Note that it doesn't say “long considered by some” so as to draw such a consideration under disrepute, but that this is the “consideration long held, this is what was believed and taught by the Church”. The letter clearly recognized and proposed that “...the political and social situation of the past made the death penalty an acceptable means for the protection of the common good...” (Letter to the Bishops, 2) and that this approach “...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” (Letter to the Bishops, 8). In other words, according to Francis it was an acceptable means in such political and social situations, especially when it was more difficult to protect the common good.
It is for this reason that John Paul II formulated CCC 2267 stating that the death penalty can be justified within this framework. It states that the “defense of the common good requires that the unjust aggressor be rendered unable to cause harm” and that “the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.” In fact, “the cases in which the execution of the offender is an absolute necessity 'are very rare, if not practically nonexistent'.” And more importantly, “If...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 keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.” It should be noted that once one has been rendered harmless then no further means are required to protect the common good. If one could not be rendered harmless by any other means than lethal means, then that is a matter to be considered such in the case of self-defense or proportionate response against a combatant, though neither case involves the direct, intended killing of an individual (principle of double effect). But since one is typically rendered harmless in preparation for the death penalty, then the death penalty would no longer be necessary in order to render them harmless. The only principle that would remain is the punishment of the guilty, which in and of itself would not necessarily require the intent to kill the non-innocent party. “Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform” (Evangelium Vitae, 27).
And to this end, we should favor means which are remedial in nature. Again, “The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society” (Evangelium Vitae, 56). John Paul II clearly states that “authority will limit itself to such [non-lethal] means.” Why? Because non-lethal means are “more in conformity with the dignity of the human person”. At this point Feser rightly points out that “more in conformity” carries the meaning that some dignity remains in the act of the death penalty, as indeed it has been necessary in order to protect the common good. For if there were no dignity in it in any circumstance, if it were completely undignified of an act and devoid of any merit, then and only then could we speak of it as immoral in a broad sense, but in the case of the death penalty it is a means to an end. To be sure, the death penalty can be an immoral act if there is not a fair trial, it is not a proportionate response, is done out of a sense of vengeance, not done by the legitimate authority, etc. In fact, too often that sense of vengeance is displayed by those who gleefully celebrate the death of another human being. Such a view is incompatible with the love we are called to have for our enemies, to will their ultimate good towards union with God and their fellow man. It is for this reason we must emphasize mercy, knowing well that the sins they have committed have not only wounded society but have damaged their own soul. Our greatest desire ought to be their conformity with the image of Christ, knowing very well that grace can shape a man's life. Saul, after standing approvingly over the stoning of Stephen was knocked off his horse and blinded for three days.
And I set forth, the way in which the 2018 revision is worded we can add to this list any execution admitted when means which are more in conformity with the dignity of the human person are present. If non-lethal means are “more in conformity with the dignity of the human person” then lethal means are less in conformity, meaning that it is an “an attack on the inviolability and dignity of the person”. When one has non-lethal means, but opts rather for a lethal means anyways, then they do so as “an attack”; it is a choice to use means less in conformity with the dignity of the human person when one has other means at their disposal, even worse to intent such a means specifically because it is less in conformity.
Keeping in mind at this point that the existence of the death penalty only exists within the tragic economy of death introduced by sin. Such a course is not ideal, nor in line with God's restoration of his creation, and such occasions only exist due to the destructive nature of sin. Even as a lawful execution nevertheless participates in the brokenness of the world by perpetuating unnecessary bloodshed, for even the executioner is shedding the blood of one made in the image of God. Though it should not be dismissed that the perpetrator still retains ontological dignity, and because of which it would be morally unacceptable to deliberately intend to act contrary to it for its own sake, and render no opportunity to reform. A few years later, in 2020 Francis released Fratelli Tutti which states “...the death penalty is inadequate from a moral standpoint...” Why? Because we now have means which are more in conformity with the ontological dignity of the human person.
It would be at this point that many would direct our attention to the Pericope Adulterae. In which Jesus is posed a dilemma, whether to advocate for the requirement of the Mosaic Law to render the death penalty for a woman caught in adultery. The existence of such a course is not in question. The question hinged on whether or not Christ will affirm its application in the New Testament. Not to mention the fact that the Jews were not entitled to put one to death under Roman law. Such hinges on the penal laws under the Old Covenant lived out in a theocratic society. And it is instructive that Christ's declaration of “Let anyone among you who is without sin be the first to throw a stone at her” draws us to the foundational problem, the economy of sin, under which we all deserve death and hell. But in a striking turn of events we see Christ instituting an economy of mercy “Neither do I condemn you.” And very eloquently moves to a redemptive posture in remedying the heart of our problem “Go your way, and from now on do not sin again.”
“You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you…” Christ certainly affirms the limiting principle involved but asks us to virtuously go beyond the minimum and extend mercy, a willing of the good of the other in such a way that can occasion rehabilitation. In this sense, mercy does not destroy justice but is a certain kind of fulfillment of it. Mercy considers that the highest form of justice is the restoration of communion and the conversion of the sinner. For the Father's heart is more concerned with the renovation of the heart than He is with whether He has been offended or not, and to express this 'when we were yet sinners, Christ died for us.' The Church’s move toward declaring the death penalty inadmissible is not mercy against justice, but mercy for justice, because true justice, ordered to the common good and conversion, is better served by preserving life. Mercy limits the exercise of retributive justice for the sake of justice itself, so that justice is achieved in its fullness: the reordering of the person toward good. To this end, the atonement was completed through the act of the death penalty, in order that justice may be fulfilled within us. And this is the greatest desire of the Christian, that all may share in the satisfaction which Christ rendered to the Father by His most holy Passion on the wood of the cross.
The reason why we have intrinsic value and inherent, ontological dignity is because we are created in the image of God, we have an eternal, immaterial soul with powers such as a will and an intellect. And together with the body have this dignity. Which is why the Francis formulation refers to “the inviolability and dignity of the person”. We have ontological dignity “beyond every circumstance” (Dignitas infinita, 1). Ontological dignity “belongs to the person as such simply because he or she exists and is willed, created, and loved by God. Ontological dignity is indelible and remains valid beyond any circumstances in which the person may find themselves” (Dignitas infinita, 7). This is to be distinguished from moral dignity of which the document continues... “This is where the present distinction can help us discern between the moral dignity that de facto can be “lost” and the ontological dignity that can never be annulled. And it is precisely because of this latter point that we must work with all our might so that all those who have done evil may repent and convert.”
Again, the 2018 revision states “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.” And indeed history is replete with examples of Pope's, Fathers, and the Catechism of the Council of Trent affirming the legitimacy of the death penalty. In it, this Catechism, which was issued in 1566 by Pope Pius V, and was the universal catechism until 1992 states:
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. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.
