The Problems With Pope Francis’ Change in Catechism on Capital Punishment

An interview on capital punishment with philosopher and scholar Edward Feser.

By John Zmirak Published on August 13, 2018

In light of Pope Francis’ major change of the Catechism of the Catholic Church on capital punishment, The Stream decided to interview an expert. Prof. Edward Feser is co-author of By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.

The Law Writ on the Human Heart

Most of our readers here are evangelicals. So let’s leave aside papal authority, for the moment. You’re a specialist in the natural law. That’s the “law written on the human heart” (St. Paul). We have the first scriptural evidence for it in the Covenant with Noah. Is that fair? Or would you like to describe natural law differently?

Not differently. But I would say that, left by itself, the phrase “law written on the human heart” is vague. A little more has to be said. Start with an analogy. Consider a non-human animal, such as a bird. There are various ends or goals it needs to fulfill in order to flourish. Building a nest. Finding worms or whatever to feed itself and its young. And so on. It is, you might say, “aimed” at or “directed” toward these ends or goals by virtue of its very nature or essence. It’s just part of what it is to be a bird to pursue these sorts of ends or goals.

Now, we are like that too. There are certain ends or goals that we need to fulfill in order to flourish as the kinds of things we are. Some of these ends we share with the other animals. (Acquiring food and shelter.) Some of them are unique to us, such as the ends or goals that follow from our being rational animals. (Pursuing truth and acquiring knowledge. Using language, forming systems of law and cultural institutions, and the like.) But our having a certain distinctive collection of ends or goals follows from our nature or essence no less than in the case of the bird. And as with the bird, realizing these ends or goals determines whether we are going to be flourishing or healthy specimens of the kind of thing we are.

Feser video

Dr. Edward Feser, via Youtube/EWTN.

Now that gives us an objective standard of goodness or badness. A bird that fails to seek out food or build a nest is, as a matter of objective fact, a defective or deficient bird. So too a human being who fails to pursue truth. Or to respect the rules necessary for social life, or what have you. He is to that extent deficient as a human being. And this standard is as objective in our case as in the case of the bird. What is good or bad for us follows from our nature, just as what is good or bad for a bird follows from its nature.

The basic idea of the natural law approach to ethics is that morality has an objective foundation in human nature in this sense. Of course, it gets much more complicated. When worked out philosophically, it requires a defense of what is called essentialism. (That’s the view that things have essences or natures as a matter of objective fact. Not just as a matter of custom or convention.) Also of teleology (the idea of purpose or goal-directedness built into the natural world). And of course, it involves developing general principles. They’re grounded in the human nature we all share. But they sometimes require some complex reasoning in order to see how they apply to various specific concrete moral issues. But the basic idea is that human nature is the foundation of morality. And to a large extent this is knowable to anyone even apart from whether or not he believes in God.

Joseph Bessette and I spell all of this out in detail in our book. We show how it provides a foundation for the traditional understanding of punishment in general and capital punishment in particular.

What Pope Francis Thinks

Okay. Can you please recapitulate in less fuzzy, emotive language the case Pope Francis makes against capital punishment in our present society. And then respond to it.

The pope makes two main claims. The first is that capital punishment is no longer necessary in order to protect innocent lives. That’s because in his view there are ways to incarcerate violent criminals so that they can no longer pose a danger. The second is that capital punishment is, in any case, “an attack on the inviolability and dignity of the person.”

The teaching of Genesis 9:6 is precisely that capital punishment follows from a respect for human dignity.

The problem with the first claim is that, with all due respect to the pope, there aren’t really any good reasons to believe it. And there are several good reasons to doubt it. Let’s say developed countries have adequate means to incapacitate violent offenders short of execution. But there are large parts of the undeveloped world which do not. To insist that capital punishment is flatly “inadmissible” even in those countries is simply to put innocent lives at risk. It is ironic that the pope would recommend a sweeping policy change for the whole world that reflects what might be called a rather Eurocentric point of view.

Furthermore, the pope entirely ignores the issue of whether the death penalty deters. True, some social scientists deny that it does. But many social scientists have concluded, on the basis of peer-reviewed empirical studies, that capital punishment does have significant deterrence value. If they are right, then eliminating capital punishment will cost innocent lives. Of course, people can debate this. But that’s the point: It’s a debatable empirical matter. It is not something a pope or anyone else can simply decide by fiat. Popes have no special expertise on matters of empirical social science, any more than they do on matters of automotive repair.

Also, what about murderers who are already in prison for life and the danger they pose to prison guards and to other prisoners? Organized crime figures sometimes order assassinations, from prison, of people on the outside. So even in developed countries, it just isn’t the case that all murderers can be incapacitated in a way that makes them harmless.

There is also a problem with the second, doctrinal claim the pope makes. At least if it is taken at face value, it seems to contradict scripture, the Fathers and Doctors of the Church, and all previous popes. Capital punishment is no more in itself contrary to human dignity than any other punishment is.

Inflicting on a murderer what he deserves is not in principle unjust. It is not in itself contrary to his dignity, but on the contrary affirms his dignity by treating him as a moral agent who must face the consequences of his actions.

As the Catholic Church has always taught, the default position is that an offender deserves a punishment proportionate to the offense. Some crimes are so depraved that no punishment less than death would be proportionate. That doesn’t mean that the state should always go ahead and inflict a proportionate punishment. There may be various reasons to show mercy. You might even make the case that in practice you shouldn’t ever give a murderer the execution he deserves. Though I think it is a mistake to go that far. But either way, inflicting on a murderer what he deserves is not in principle unjust. It is not in itself contrary to his dignity, but on the contrary affirms his dignity by treating him as a moral agent who must face the consequences of his actions.

In fact, the teaching of Genesis 9:6 is precisely that capital punishment follows from a respect for human dignity. It says that a murderer deserves death precisely because his victim is made in God’s image. And the Catholic tradition has always taught the basic legitimacy of capital punishment. It was reaffirmed by many popes, from Innocent I to Innocent III to Pius V to Pius X to Pius XII and down to very recently. Even Pope John Paul II, who favored abolishing capital punishment, did not go as far as to declare it flatly inconsistent with human dignity. He acknowledged, in continuity with his predecessors, that in some cases capital punishment can be legitimate.

So, if Pope Francis is really saying that capital punishment is always and intrinsically evil. … Then he is, as far as the tradition is concerned, entirely on his own on this. He has no sources in Catholic tradition to appeal to. In the words he has added to the Catechism, the only authority he quotes is a speech of his own. From just last year. That’s not much to pit against two millennia of previous consistent papal teaching and the teaching of scripture.

Did Moses Violate Human Dignity?

Catholics are arguing about this, but it seems to me that Francis is also looking back retrospectively. He’s saying that capital punishment always violated human dignity. But we’re just now realizing it. Is he saying that? If so, what are the implications of that? They seem radical to me.

Some of what he says does seem to be implying that. But there are also things that seem to point in the opposite direction. For example, the letter from the Congregation for the Doctrine of the Faith (or CDF) that announced the change claimed that it does not contradict past teaching but merely “develops” it.

But it’s no good merely to assert that you aren’t contradicting something, if the rest of what you say does in fact seem to contradict it. Suppose I said to you that all men are mortal and Socrates is a man. Then a day later I told you that Socrates is not mortal. You would say “Hey, you just contradicted what you said yesterday!” And it would be ridiculous if I responded “No, I’m not contradicting it, I’m just developing it.”

In the same way, if you simply assert flatly that capital punishment is “an attack on the inviolability and dignity of the person” and is for that reason “inadmissible,” you seem to be saying that it is intrinsically wrong to apply capital punishment. And since scripture and previous popes said the opposite, you seem to be contradicting them.

A ridiculous aspect of the debate over this issue is how defenders of the revision to the Catechism will insist that if you stand on your head and squint real hard and also have a degree in theology, you will be able to come up with a clever way to make the text look like it is not in conflict with traditional teaching.

Defenders of the revision to the Catechism will insist that if you stand on your head and squint real hard and also have a degree in theology, you will be able to come up with a clever way to make the text look like it is not in conflict with traditional teaching. If it takes that much effort to read the text in an orthodox way, then that is itself a serious problem. Catechisms are supposed to be clear.

If it takes that much effort to read the text in an orthodox way, then that is itself a serious problem. Catechisms are supposed to be clear. It’s true that they don’t try to answer every question. A theologian will see things the ordinary person wouldn’t. But nevertheless a catechism is supposed to be accessible to the average person. So if the average person would naturally read the new text as saying that capital punishment is intrinsically wrong, then we have a problem.

And after all, it really isn’t that hard to say “Capital punishment is not intrinsically evil, but you should still not ever use it, and here’s why.” So why doesn’t the text just say that? The pope has to realize that people will read the revision as saying capital punishment is intrinsically evil.

The implications are, as you say, radical. What if the Church has been this wrong for this long about something this serious? Then people are bound to ask themselves why we should believe the Church hasn’t gotten lots of other things wrong. Moreover, if Innocent I, Innocent II, Pius V, Pius X, Pius XII, John Paul II and so on all got things so badly wrong, why suppose that Pope Francis has gotten them right? If he really means to reverse the traditional teaching, then the pope’s action threatens to undermine his own credibility along with the credibility of past teaching. It would in that way be a kind of self-defeating action.

So I think it is very important that he revisits this issue and explicitly reaffirms the traditional doctrine that capital punishment is not intrinsically evil. Merely having the CDF letter assert that there is no contradiction is not enough to remove the appearance of a contradiction.

Are We So Much More Enlightened Now?

Is Pope Francis engaged in what C.S. Lewis called “chronological snobbery”?

To the extent that the revision to the Catechism appeals to a “new understanding” of punishment and the “increasing awareness” of human dignity that people allegedly have “today,” you could make a case for that. The CDF cover letter suggests that this new understanding emphasizes “rehabilitation and social reintegration,” apparently instead of retributive justice.

What about murderers who are already in prison for life and the danger they pose to prison guards and to other prisoners? Organized crime figures sometimes order assassinations, from prison, of people on the outside. So even in developed countries, it just isn’t the case that all murderers can be incapacitated in a way that makes them harmless.

Here too, unfortunately, there are serious problems. Pope Pius XII in a number of speeches addressed the subject of criminal justice and punishment at greater length and in more systematic depth than probably any pope in history. He explicitly criticized the suggestion that we ought to follow the tendency of modern criminal justice to emphasize rehabilitation at the expense of retributive justice. He explicitly taught that the importance of retributive justice, of inflicting on the offender the penalty he deserves, is rooted in divine revelation and is not a merely historically contingent approach. Joe Bessette and I quote from and discuss Pius’s various speeches on this topic at some length in our book. That’s because they are so beautifully clear and logical and systematic. But they are essentially ignored in contemporary Catholic discussions of crime and punishment.

Pope Francis gave a speech last October. In it, he discussed the idea of changing the Catechism. He criticized what he called “static,” “rigid,” and “immutable” interpretations of doctrine. That too might seem to imply that modern Christians have a better understanding of things than their forebears in the Faith did. Yet static, rigid, and immutable interpretations of doctrine are exactly what the First Vatican Council and Pope St. Pius X solemnly taught were essential to the very character of Catholicism. Cardinal John Henry Newman, the great theorist of the development of doctrine, emphasized that a true development is precisely not a reversal of the teaching of the past. That would be a corruption of doctrine rather than a development.

The Church of the Happy Moments?

The roots of this change lie in Pope John Paul II’s changes to the Church catechism. He removed from it — without condemning — the primary traditional justification for capital punishment, enacting justice. He left it only as a last resort, where no other means would protect society from the criminal. Without that, it’s hard to see how executing the Nazis at Nuremberg was just, since Allied prisons were plenty secure. Do you see this as creeping toward utilitarianism?

Absolutely not. Pope John Paul II was the last man you could ever accuse of being a utilitarian. Indeed, he was, you might say, gloriously static, rigid, and immutable in his defense of moral absolutes. But it is true that when dealing with matters of punishment, he preferred not to put emphasis on the idea of inflicting just deserts. As is often pointed out, the unspeakably nasty treatment of human beings that he witnessed under Nazism and Communism probably had a lot to do with that. Not to mention the generally bureaucratic and impersonal way that criminal justice, like so much else in human life, has come to be practiced in modern times. And I think that is indeed something to be concerned about. Though I don’t think it really has anything more to do with capital punishment, specifically, than it does other punishments.

Joe Bessette and I demonstrate in our book that it is a myth that John Paul II in any way rejected the traditional understanding of punishment as fundamentally a matter of retributive justice. Including capital punishment. It is clearly there in his teaching if you read it without preconceptions. But there are other purposes of punishment beyond those of retributive justice, and he preferred to emphasize those.

Regarding the Nuremberg executions, I’m not sure what John Paul would have said. But he certainly wouldn’t say that they were unjust, because he explicitly acknowledged that capital punishment can be just in some circumstances. And I would not be surprised if he would have allowed that those circumstances would have existed in that case. I think what he primarily had in mind in pushing for abolition was everyday criminal justice in a modern Western democracy. However, it does seem that Pope Francis’s position, which is more extreme than John Paul’s, would rule out even the Nuremberg executions.

No Life Imprisonment Either

Pope Francis has also condemned life imprisonment as cruel, depriving prisoners of “hope.” Can you speak to his understanding of “hope”?

I can’t say I know exactly what the pope means. I do know that hope, as a Christian virtue, is possible whatever one’s material circumstances. Certainly an offender who has done something so evil that he merits life imprisonment can still have hope. He can repent of his sins, receive the sacraments, and look forward to eternal life, which is ultimately what matters.

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People who defend Pope Francis’s views on capital punishment and demand that other Catholics agree with them, never seem to want to talk about the pope’s condemnation of life imprisonment. Are we all supposed to agree with that too? Notice that here too the pope is saying something that has no basis in Catholic tradition. Indeed, the United States Catholic Bishops have in the past advocated life imprisonment as an alternative to capital punishment. Would they now abandon that? If life imprisonment is out too, exactly what are we supposed to do with mass murderers and serial killers?

Development, Schmevelopment

Now let’s talk Church authority. There are several possible ways to evaluate Pope Francis’ latest move. I’ll lay them out as I’ve seen them. Then ask you to comment on them.

a) A legitimate development of doctrine, which is binding on the conscience of every Catholic.

There is no development of doctrine here at all. Either the pope intends to reverse past teaching or he does not. If he does, then there is no “development” of past doctrine but a contradiction of past doctrine. And no pope has the authority to do that. If he tries, he’s simply guilty of a doctrinal error, and that’s that. And it is possible for popes to make doctrinal errors when not speaking ex cathedra. It’s even happened a couple of times in the past, though it is very rare. The best-known examples are Pope Honorius I and Pope John XXII.

When I point this out, critics sometimes accuse me of putting my authority over the pope’s. That is just silly. It’s got nothing to do with me. I’m just citing what the Church herself says. The First Vatican Council explicitly tells us that popes cannot introduce new doctrines. Pope Benedict XVI reiterated this. Donum Veritatis, a document issued by the CDF under Pope John Paul II, acknowledged that magisterial documents can be deficient in various ways. And that a loyal theologian has the right, and in some cases even the duty, respectfully to call these problems to the attention of the Church.

People who say that those of us who are defending over 2000 years of scriptural and traditional teaching are “dissenters” comparable to Catholics who support abortion or contraception. … They simply don’t know what they are talking about.

The pope is saying something that has no basis in Catholic tradition.

The other possibility is that the pope does not intend to reverse past teaching. But in that case, there’s also no development of doctrine. It would merely be a prudential judgment about how to apply traditional teaching to current circumstances. And Catholics are not obligated to give such judgments more than respectful consideration. That’s because they involve judgments about empirical matters (such as the adequacy of the modern prison, the deterrence value of capital punishment, and so on) about which the Church has no special expertise.

In 2004, Cardinal Ratzinger, who was then John Paul II’s chief doctrinal officer and who later became Pope Benedict XVI, made it clear that:

If a Catholic were to be at odds with the Holy Father on the application of capital punishment… he would not for that reason be considered unworthy to present himself to receive Holy Communion… There may be a legitimate diversity of opinion even among Catholics about… applying the death penalty.

I see no good reason why these words don’t apply now just as much as they did then.

Up for Grabs?

b) A dissent from what appeared to be a unanimous tradition. However, since the previous doctrine was never taught dogmatically by either pope or council, it’s not heresy per se. Instead, it removes the doctrine from the consensus of the Ordinary Magisterium, leaving us free (for now) to take either position, on the merits as we see them.

A teaching can be infallibly and irreformably taught by the Ordinary Magisterium of the Church even if a pope or a council does not explicitly declare it as dogma. I have argued elsewhere that the traditional teaching upholding the legitimacy in principle of capital punishment meets the criteria for this sort of infallible and irreformable teaching. And of course, Joe Bessette and I make this case in our book. So I would say that we are not free to take either position. Orthodoxy does not require a Catholic to support capital punishment in practice. But it does require a Catholic to hold that it can be permissible at least in theory.

An Accidental Heresy?

c) Material heresy, since Pope Francis is rejecting a doctrine that was indeed taught infallibly by Scripture and Tradition, though he believes he’s legitimately developing it.

The trouble here is that the statements the pope has made are ambiguous. He has not clearly and explicitly said that capital punishment is intrinsically evil. Though he has said things that on a face value reading seem to imply that. Why he doesn’t just come out and say “No, of course I am not saying that,” you would have to ask him. Anyway, even if the new wording is problematic, it doesn’t follow from that that it is materially heretical.

But the Church has traditionally condemned all sorts of propositions that were not strictly heretical. Namely, statements that seemed to imply propositions that are heretical or were otherwise misleading or badly phrased. For example, some propositions have in the past been condemned as “ambiguous,” or “rash,” or “offensive to pious ears,” or “scandalous,” or “proximate to heresy.” These are traditionally labeled as alternative possible “theological censures.”

So it won’t do for people to pretend that as long as you can come up with some strained reading that allows a specific problematic statement to just get under the bar of consistency with traditional teaching, then everything is hunky dory. That would rule out almost nothing. And magisterial statements are supposed to be the opposite of that. They are supposed to clarify things. Not make them less clear. And again, it really isn’t hard to do. Just say: “Capital punishment is not intrinsically evil – however it’s better never to use it, and here’s why.”

Intentional Heresy?

d) Formal heresy, since Pope Francis has been warned repeatedly that this doctrine is de fide.

There is definitely no formal heresy here. The pope has not been “warned” in the relevant sense. There would at the very least have to be some formal act like the cardinals reproving the pope, followed by his obstinately continuing to teach a false doctrine. And it would have to be somebody with actual ecclesiastical authority who makes this formal correction of a pope. The cardinals would plausibly have that, since their job is precisely to advise the pope. Some guy on a blog accusing the pope of heresy is not sufficient.

Some of the Church’s greatest theologians, such as Francisco Suarez and St. Robert Bellarmine, have addressed the question of whether a pope could be a formal heretic. And what the consequences would be. Would he thereby lose his office? What would the mechanics of that look like? And so on. The standard view seems to be that this is possible in theory. But theologians disagree about whether the Holy Spirit would allow it ever actually to occur. So far in Church history it’s been a purely academic discussion.

Aid and Comfort to Pro-Abortion Catholics?

Do you expect pro-abortion candidates who oppose the death penalty to use this now against their opponents who oppose abortion but favor capital punishment? To argue “We both dissent from the Church in our own ways. …”?

More likely they’ll loudly accuse pro-capital punishment Catholics of being dissenters. But still hold to a pro-abortion position and consider themselves to be Catholics in good standing nonetheless. Recognizing irony and cognitive dissonance is not something these people are very good at.

Anyway, the comparison is too stupid for words. Those who defend capital punishment in principle? They’re simply reiterating the constant teaching of scripture, the Fathers and Doctors of the Church, and all popes up until maybe about a week ago, depending on how you interpret Pope Francis’s revision. The pro-abortion group is flatly rejecting the constant teaching of scripture, the Fathers and Doctors of the Church, and all popes. It’s day and night.

The Church herself allows theologians respectfully to raise criticisms of magisterial statements that are deficient. As I have shown elsewhere, this has deep roots in the tradition. Now there can be no clearer mark of deficiency in a magisterial statement than the appearance of a rupture with the past. Defenders of capital punishment want to keep continuity with the past. Defenders of abortion want to overthrow the past. Pope Benedict XVI famously insisted on a “hermeneutic of continuity.” Pope St. Pius X vigorously condemned any suggestion that Catholic doctrine could “evolve” or introduce novelties. This conservative attitude toward past teaching absolutely permeates the entire history of the Magisterium of the Church from the beginning.

Catholics who defend capital punishment are manifestly the ones in sync with this orthodox attitude, whereas Catholics who defend abortion are manifestly out of sync with it.

Feser book

Learn More in Depth

What will readers of your book on capital punishment learn about the issue?

How overwhelming is the evidence that scripture, the Fathers and Doctors of the Church, and all previous popes have consistently taught that capital punishment is legitimate in principle. So this doctrine cannot be overturned. In one review of the book, the well-known Catholic theologian Janet Smith concluded that “the book simply flattens its opponents” on this issue. Readers will also learn a lot about the natural law justification of capital punishment. And the social scientific evidence that capital punishment does have significant deterrence value. And the weaknesses in claims to the effect that capital punishment is applied in a discriminatory way or that there is a significant risk of executing innocent people, and so on. It is probably the most thorough and detailed defense of capital punishment written from a Catholic point of view that has ever appeared.

Naturally, there have been some negative reviews. What is especially noteworthy is how prone some of the critics have been to ad hominem attacks and a refusal even to engage with the central arguments of the book. That speaks volumes. I have, in any event, answered all of these criticisms at some length.

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