Capital punishment and the law of nations

What is the nature of Pope Francis’s 2018 change to the Catechism’s teaching on capital punishment?  Does it amount to a reversal of traditional teaching?  A development of doctrine that is consistent with that teaching?  A prudential judgment?  And if the latter, is assent to the new formulation binding on the faithful?  Barrett Turner offers an important analysis in his Nova et Vetera article “Pope Francis and the Death Penalty: A Conditional Advance of Justice in the Law of Nations.”  Let’s take a look.

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.