Holy Apostles College & Seminary
Is the Opposition of some Catholics to the Catholic Church’s Opposition to the Death Penalty Legitimate?
Prof. Jacob Torbeck
MTH 300: Introduction to Moral Theology
19 April 2019
Introduction and Objections
In 2018, it appears to some that the Pope of the Catholic Church said something to change infallible Catholic teaching. He changed the text of the Catechism of the Catholic Church, “a sure norm for teaching the faith,” to say that the death penalty is strictly “inadmissable,” [sic] whereas the Catechism used to say that it was just seldom “an absolute necessity.” Some have taken great issue with this change, considering it erroneous and contrary to genuine Church teaching. One person, a former classmate of mine from Holy Apostles, gave some specific reasons as to why they took issue with it:
A. The new wording is dated, because it uses the word today. What about tomorrow. B. The CCC is supposed to be more theological rather than pastoral. The new statement sounds pastoral, like a guideline. C. It oversteps the natural authority of the state to condemn someone, according to Sts Thomas Aquinas and Augustine of Hippo. The teachings of the Church are meant to be interpreted in light of tradition, scripture, and the Church Fathers. This completely contradicts the Scriptures according to Fr. Hardin and his defense of the death penalty, the laws of Moses, the passage in which Jesus says “it would be better that a mill stone be wrapped around his neck”, the 5th commandment is properly interpreted as thou shall not murder unjustly, it contradicts the teachings on self-defense. It could be in a homily, but not in the CCC.
In this paper, I hope to offer my own answer as to whether or not this revision was acceptable for Pope Francis to make and to alleviate the very-much valid concerns raised by my former classmate.
The Text in Question
The full text of the revised section 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.
Whereas the previous version reads:
Assuming that the guilty party’s identity and responsibility have been fully determined, 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.
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 keeping with the concrete conditions of the common good and are more in conformity to the dignity of the human person.
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 non-existent.”
My Own Explanation
I am inclined to hold to a position similar to the thinking of Brugger, who holds that the “implication of the shift for Catholic moral teaching is that the death penalty precisely as punishment is no longer being defended, but rather the death penalty as collective self defense.” It should be noted that Pope Francis, in his revision, did nothing to deny the principle of double-effect in regard to self-defense, even when this involves killing an aggressor. Therefore, the revision would seem to be saying that man should not consider death to be a “punishment” that he is qualified to administer as such, at least without the simultaneous motivation of legitimate concern for “collective self defense” (which the revision presupposes is not now a valid concern, hence why the death penalty is considered inadmissible).
To me, this seems to bear little difference from the previous wording of 2267. Even in that previous wording, it was held (as quoted) that the death penalty was legitimate only when it involves the continued defense of human lives (i.e., when the person continues to pose a deadly threat to his fellow men), and that even this was becoming quite a rare, “if not practically non-existent,” necessity due to modern methods of prisoner constraint.
One could be thrown by Francis’s point that the death penalty is no longer legitimate for the sake of the common good. This seems to go against what I just said above about the doctrine of double-effect, with the indirect result of killing of an aggressor being legitimate in order to prevent him from killing another. However, Francis is presupposing the adequacy of containment methods in his saying that, as can be seen from later in his revision. Thus, it can be presumed to remain true that “Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others”; and so, what Francis is really speaking against is death as a penalty, strictly, solely, and contemporarily speaking. St. Thomas Aquinas pointed out that “[it is not] necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one’s own life than of another’s.” In light of today’s means of containment, the death penalty as such should no longer be considered “moderate self-defense,” and therefore can be classified as inadmissible.
Reply to Objection A
My former classmate took issue with the fact that the new version made use of the word “today.” I can see this concern, since the wrong interpretation of “today” could make Church teaching seem unstable and morality changeable. However, as can be seen, the original text also uses the word “today”; and if you ask me, this is not necessarily a bad thing. The Church’s recognition in her moral teaching of present-day circumstances is not automatically a sign that her teaching is changing with the times, so to speak, but could instead be seen as her being dynamic in nature. First and foremost, it should be noted that Our Lord told us that the Holy Spirit would guide us “to all truth” (Jn 16:13, NABRE). There is no reason that this guidance should be viewed as something immediate; for some aspects of knowledge, including some that pertain to moral knowledge, come to man with time. One might consider in this regard Our Lord’s fulfillment of the law, or (e.g.) the fact that “the past did not know either the entire reality and development of the human person or its individual elements hidden in human biology and psychology”—hence why “one cannot take what Augustine or the philosophers of the Middle Ages knew about sexuality as the exclusive basis of a moral reflection.”
Another facet of Church teaching that could be considered in this regard is the Church’s approach to bioethics, which is personalistic. Personalism, while still recognizing the legitimacy of the teachings of St. Thomas Aquinas on the nature of man, can nonetheless be described as a “Dynamically thinking enterprise.” This is so because it employs multiple different kinds of knowledge, including both inductive and deductive reasoning and ever-progressing scientific knowledge, in its approach to bioethical questions. This does not make it opposed in the least to Thomistic ideas, or that intends to change them; it only means that such ideas are enabled to be applied and maintained properly in respect to contemporary issues—something that is necessary for the Church to be truly universal in a temporal as well as spatial sense. Therefore, the “today” of the new revision could very well be seen as the “tomorrow” of the previous version.
Reply to Objection B
My former classmate’s second objection concerned the manner of presentation of the new version, as pastoral rather than theological (by which I will assume they mean doctrinal, since the Catechism’s point is to be doctrinal more than theological). I can see the concern here, since the revised teaching is presented very argumentatively, i.e., with premises and a conclusion rather than just a statement, and this is done within the context of the main text rather than in one of the supplementary block quotes. However, this is not the only place in which the Catechism does this. In section 470, e.g., it gives a reasoned explanation of why the Church holds that Christ had a human soul. Of course, this might bring up the question of why the Catechism does this at all, if it’s supposed to be a doctrinal rather than argumentative document.
The Catechism was constructed, not just as a compilation of doctrine, but also as a teaching tool; this is why it features such things as cross-references and more easily-memorized summaries at its teachings at the end of its “paragraphs.” Some amount of explanation of its teachings, then, is necessary in order to properly fulfill the work’s catechetical end.
Reply to Objection C
To consider this objection in chronological order, I will begin with St. Augustine’s position on the death penalty. He “wrote many letters to civil magistrates urging them not to carry out the scheduled executions, but that did not mean that he denied the legitimacy of the death penalty.” Yet, I would not say it was quite so simple; for “though he accepted the moral lawfulness of the death penalty justly applied, he worked assiduously at minimizing its application through the application of clemency.” One might say, then, that Augustine “[worked] with determination for its abolition,” to use Francis’s wording. I will certainly not deny that Augustine recognized the state’s authority to pronounce a death sentence; the fact that he asked Donatus to “forget that you have the power of capital punishment” clearly implies that Donatus did indeed have that power. Yet, even in Augustine’s understanding, the death penalty should be used only as a last resort: “If, then, there were no other means established to curb the malice of the wicked, extreme necessity might perhaps urge that such men be put to death.”
This is the train of thought that I believe St. Thomas Aquinas likewise held to. Now some, like my former classmate, think quite differently on this matter. Proctor references Aquinas’ Summa contra gentiles to note that, “Thomas Aquinas (1225–74), the greatest Doctor of the Church, expressed little ambivalence about the death penalty, calling arguments against its use ‘frivolous,’” which would seem to sufficiently elucidate Aquinas’ position. And even though he features a direct and accurate quote from Aquinas, I don’t think that even Proctor sees the whole picture. For in each instance of his mention of the permissibility of the death penalty, both in the Summa theologiae and the Summa contra gentiles, Aquinas generally does so with qualifiers such as “the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement,” or “if a man be dangerous and infectious to the community.” Granted, in another part of the ST, he advocates killing sinners in as a deterrent to sin, by taking from man what he loves most; but even then, his overarching point is that vengeful punishment “tends to the prevention of evil,” and has a “medicinal character; wherefore the punishment of death is inflicted on those sins alone which conduce to the grave undoing of others.” It seems to me that, with the arrival of significantly more efficient prison containment than would have existed in Aquinas’ age and in the context of Aquinas’ general teaching on killing sinners both in the ST and the SCG, it could be seen as a logical progression that “the prevention of evil” going forward from the initial crime can now be sufficiently exercised without the use of capital punishment—and that at least the future “grave undoing of others” can likewise be sufficiently prevented.
I will also grant, however, that Aquinas’ point seems that it was not to avoid the continued “grave undoing of others” after it had initially taken place (or at least, this was not his exclusive aim), but to deter man from so undoing others in the first place “through fear of losing those things which they love more than those they obtain by sinning.” Again, though, such a capital punishment is intended to be, as is all vindictive punishment, “medicinal”; yet it would not truly be healing any concrete person at all, if the “grave undoing of others” had already been done, and the guilty party was already rendered incapable of doing it again (such as by effective containment). To again use Aquinas’ wording from the SCG, capital punishment makes sense if “the danger which threatens from their [the criminals’] way of life is greater and more certain than the good which may be expected from their improvement”; but if such criminals were to pose no further danger, no one would truly be healed by their being killed. In a sense, one could even say that man has his “life” taken from him by lifelong, inescapable imprisonment.
There is no question that Fr. John Hardon is an adamant proponent of the death penalty, and he makes a very strong case for it. He does mention Aquinas’ point concerning the need for it to be carried out in accordance with the protection of others: “Certainly the crime had to be very serious and the welfare of society was at stake” for it to be permissible. Yet, he also holds that the New Testament Scriptures affirm the state’s authority to enact the death penalty (and that the Old Testament establishes it), that it is necessary for the state to punish sin proportionately in order to maintain the moral order, and the state’s right to carry this proportionate punishment (including the death penalty) out without circumstantial condition is established by Sacred Scripture and Tradition.
Regarding the New Testament, it should be noted that it does not directly state that the death penalty as such is a right of the state. To use Fr. Hardon’s own quotations, St. Paul says that the state has the right to punish evildoers generally speaking (see Rom 13:14), and Christ tells us to “give to Caesar what belongs to Caesar” (though this is meant in terms of taxes—to say that it applies specifically to the right to carry out the death penalty unequivocally would be begging the question). As for my classmate’s mention of the millstone, I would say that the wording used in the Gospel According to Luke can be used to clarify the true meaning here: “It would be better for him if a millstone were put around his neck and he be thrown into the sea than for him to cause one of these little ones to sin” (Lk 17:2). I would say that this could be viewed in the same way that it would have been better for Judas Iscariot had he never been born (see Mt 26:24): the post-death punishment was to be so bad that it would be better to suffer a horrible death by drowning than to commit the sin and face such eternal recompense. “It is better for you to enter into life maimed or crippled than with two hands or two feet to be thrown into eternal fire” (Mt 18:8).
Regarding the Old Testament, though God does give the public Israelite authorities the command to kill those who commit certain sins, this is an authority specifically established by Himself, and the punishment is to be administered to a person who specifically broke a covenant with Him. Furthermore, it should be kept in mind that God also gave the Israelites the authority to drive out various pagan peoples from their homes (see Dt 9:3-5)—and I doubt much of anyone would say that the state in general has the unequivocal authority to do that.
I would say that Fr. Hardon’s very strongest point is that which he utilizes from Pope Pius XII: “Equally important is the Pope’s insistence that capital punishment is morally defensible in every age and culture of Christianity. Why? Because the Church’s teaching on ‘the coercive power of legitimate human authority’ is based on ‘the sources of revelation and traditional doctrine.’ It is wrong, therefore, ‘to say that these sources only contain ideas which are conditioned by historical circumstances.’ On the contrary, they have ‘a general and abiding validity.’” Upon reviewing the document in question, however, I have noticed that the pope did not mention specifically the death penalty in the immediate context of these words, but rather vindictive punishment as a whole. Furthermore, directly after the section from which Hardon quoted, Pius XII mentioned that “the inherent purpose of the penalty [even, “with certain limits, vindictive penalty]” is “the true interior conversion of the guilty person, and a serious guarantee of its lasting character.” If this is the true purpose, the death penalty solely as a penalty would be missing the point, which is similar to what I noted regarding Aquinas’ words in the SCG.
In writing this paper, I have not attempted to say whether I think Pope Francis was acting prudently or necessarily in making this revision to the Catechism. That is entirely another consideration. My purpose here, rather, has been to consider whether or not there was anything inherently wrong with the revision or his having made it, such as whether there was any true discontinuity in Church teaching involved, and thus whether it was acceptable for him to make it. My considered—and argued—opinion is that there is no such discontinuity, and that there is nothing inherently wrong with his having made the revision. While I believe that the concerns of my former classmate are well-founded and well worth consideration, I believe that they can be alleviated, ultimately by the understanding that the revision is a logical and realistic progression of the teaching of the living Tradition and Magisterium of the Church, and also such a progression toward ever more perfect truth thanks to the active guidance of the Holy Spirit.
Augustine of Hippo. Letter 100. Trans. J. G. Cunningham. Nicene and Post-Nicene Fathers, ed. Philip Schaff, vol. 1. Buffalo, NY: Christian Literature Publishing Co., 1887. At New Advent, http://www.newadvent.org.
Babarsky, Judith. Class notes on Epistemological Justification, Philosophical Foundations and Research Methods in Bioethics. Cromwell, CT: Holy Apostles College & Seminary, distributed 21 January 2019.
Bordoni, Linda. “Pope Franis: ‘Death Penalty Inadmissable.’” [sic] At Vatican News, 2 August 2018, at http://www.vaticannews.va.
Brugger, E. Christian. “Rejecting the Death Penalty: Change and Continuity in the Tradition.” In Haythrop Journal 49, no. 3 (2008): 388-404.
Catechism of the Catholic Church. 2nd ed. New York, New York: Doubleday, 1997.
Chutikorn, Paul. Facebook post. 3 August 2018. At https://www.facebook.com.
Curran, Charles E. “Catholic Social Teaching.” The Good Society 10, no. 1 (2001): 1, 4-6.
Former Holy Apostles student, to Cameron Daly. Facebook message of 19 September 2018.
Greenwell, Andrew M. “Church Fathers and Capital Punishment: St. Augustine—Mercy and the Death Penalty.” Lex Christianorum (blog). 5 March 2012. At lexchristianorum.blogspot.com.
Hardon, S. J., John A. “The Legitimacy of Capital Punishment.” At The Real Presence Association, 19 November 1995, at http://www.therealpresence.org.
Holy Bible: New American Bible, revised ed. 2011. At USCCB, at http://www.usccb.org.
Lawler, Michael G. and Todd A. Salzman. “Virtue Ethics: Natural and Christian.” Theological Studies 74 (2013): 442-473.
Pope John Paul II. Apostolic Constitution on the Publication of the Catechism of the Catholic Church Fidei depositum (11 October 1992).
Pope Pius XII. Address to the Union of Italian Catholic Jurists (3 October 1955). In “Addresses of Pius XII on Purposes of Punishment and the Death Penalty,” ed. Andrew Guersney. At A Medium Corporation, 15 October 2017, at medium.com.
Proctor, Ryan M. “Catholic Judges Have No Obligation to Recuse Themselves in Capital Cases.” Harvard Journal of Law & Public Policy 42, no. 1 (2019): 310-350.
Ratzinger, Joseph Cardinal, and Christoph Shonborn. Introduction to the Catechism of the Catholic Church. San Francisco: Ignatius Press, 1994.
Sgreccia, Elio. Personalist Bioethics: Foundations and Applications. Trans. John A Di Camillo and Michael J. Miller. Philadelphia: The National Catholic Bioethics Center, 2012.
Thomas Aquinas. Summa contra gentiles. Trans. Vernon J. Bourke. At DHS Priory, at http://www.dhspriory.org.
Thomas Aquinas. Summa theologiae. 2nd ed. Trans. Fathers of the English Dominican Province. At New Advent, http://www.newadvent.org.
Willey, Ph.D., S.T.L., Petroc, Pierre de Cointet, and Barbara Morgan. The Catechism of the Catholic Church and the Craft of Catechesis. San Francisco: Ignatius Press, 2008.
 Pope John Paul II, Apostolic Constitution on the Publication of the Catechism of the Catholic Church Fidei depositum (11 October 1992), §3.
 Linda Bordoni, “Pope Francis: ‘Death Penalty Inadmissable,’” [sic] at Vatican News (2 August 2018), at http://www.vaticannews.va.
 Former Holy Apostles student to Cameron Daly, Facebook message (19 September 2018).
 Bordoni, “Death Penalty Inadmissable,” [sic] q. Catechism of the Catholic Church, 2267 (new version).
 Catechism of the Catholic Church, 2nd ed. (New York, New York: Doubleday, 1997), 2267.
 E. Christian Brugger, “Rejecting the Death Penalty: Change and Continuity in the Tradition,” in Heythrop Journal 49, no. 3 (2008), 388.
 see CCC, 2264-2265, and Paul Chutikorn, Facebook post, 3 August 2018, at https://www.facebook.com.
 cf. Chutikorn, Facebook post, 3 August 2018 (though this basic point will come in as supported by other articles through the paper).
 CCC, 2265.
 Thomas Aquinas, Summa theologiae, II-II, q. 64, a. 7, at New Advent, at http://www.newadvent.org.
 Michael G. Lawler and Todd A. Salzman, “Virtue Ethics: Natural and Christian,” Theological Studies 74 (2013), 462.
 Lawler and Salzman, “Virtue Ethics,” 462, q. Josef Fuchs, S.J., Moral Demands and Personal Obligations (Washington: Georgetown University, 1993) 36.
 Judith Babarsky, class notes on Epistemological Justification, Philosophical Foundations and Research Methods in Bioethics (Cromwell, CT: Holy Apostles College & Seminary, distributed 21 January 2019).
 Babarsky, notes (21 January 2019), and Elio Sgreccia, Personalist Bioethics: Foundations and Applications, trans. John A. Di Camillo and Michael J. Miner (Philadelphia: The National Catholic Bioethics Center, 2012), 74.
 see Petroc Willey, Ph.D., S.T.L., Pierre de Cointet, and Barbara Morgan, The Catechism of the Catholic Church and the Craft of Catechesis (San Francisco: Ignatius Press, 2008), xxxi.
 cf. Joseph Cardinal Ratzinger and Christoph Schonborn, Introduction to the Catechism of the Catholic Church (San Francisco: Ignatius Press, 1994),
 see CCC, 470.
 see Willey et al., Craft of Catechesis, ix, and Ratzinger and Schonborn, Introduction, 63.
 Ryan M. Proctor, “Catholic Judges Have No Obligation to Recuse Themselves in Capital Cases,” Harvard Journal of Law & Public Policy 42, no. 1 (2019), 322.
 Andrew M. Greenwell, “Church Fathers and Capital Punishment: St. Augustine—Mercy and the Death Penalty,” Lex Christianorum (blog), 5 March 2012, at lexchristianorum.blogspot.com.
 Augustine of Hippo, Letter 100, II, trans. J. G. Cunningham, Nicene and Post-Nicene Fathers: First Series, ed. Philip Schaff, vol. 1 (Buffalo, NY: Christian Literature Publishing Co., 1887), at New Advent, at http://www.newadvent.org.
 Greenwell, “St. Augustine,” q. St. Augustine, Letter 134 to Apringius, IV.
 Proctor, “Catholic Judges,” 323, q. Thomas Aquinas, Summa contra gentiles, bk. III, pt. 2, ch. 146, ¶ 9 (Vernon J. Burke trans., Univ. Notre Dame Press 1975) (1259–1265).
 Thomas Aquinas, Summa contra gentiles, III, 146, at DHS Priory, at http://www.dhspriory.org.
 ST, II-II, q. 64, a. 2.
 ST, II-II, q. 108, a. 3.
 ST, II-II, q. 108, a. 3, r. 2.
 It might serve to “heal” society itself in a way, but society as a larger whole is supposed to help work for the good of individual persons. Cf. Charles E. Curran, “Catholic Social Teaching,” The Good Society 10, no. 1 (2001), 4.
 John A. Hardon, S. J., “The Legitimacy of Capital Punishment,” at The Real Presence Association (19 November 1995), at http://www.therealpresence.org.
 Hardon, “Capital Punishment.”
 Hardon, “Capital Punishment.”
 This is part of the immediately-following context of basically the same saying of Jesus’, albeit with rearranged wording, in the Gospel According to Matthew.
 see Hardon, “Capital Punishment.”
 Hardon, “Death Penalty,” q. Pope Pius XII, Acta Apostolicae Sedis, 1955, pp. 81-2.
 Pope Pius XII, Address to the Union of Italian Catholic Jurists (3 October 1953), in “Addresses of Pius XII on Purposes of Punishment and the Death Penalty,” ed. Andrew Guersney, at A Medium Corporation (15 October 2017), at medium.com. This was the source of what seems to be the English translation of the 1955 edition of A.A.S., after having used Google Translate on the Italian translation of this A.A.S. article found on the Vatican website (with the translation provided here being more thorough than that of Google Translate).
 Italian Catholic Jurists.