“If bloodless means are sufficient”: The devil of capital punishment is in the details

By Dr. Jeff Mirus ( bio - articles - email ) | Aug 10, 2018

In yesterday’s commentary on the recent change to the Catechism on the use of the death penalty, I passed over fairly quickly the tricky question of when the death penalty may be necessary to protect the community. This is an interesting question because it is not clear exactly what the official teaching of the Church intends to convey when it refers to improvements in our penal systems. But since the Magisterium is unlikely to clarify this any time soon, I raise it primarily as an academic question. It is hardly essential study material for all readers, and it is not for the faint of heart!

I begin by recalling that no catechism, even one issued by the Church, is a Magisterial source of Catholic doctrine. Rather, it is a secondary compendium of that doctrine, which cannot cover everything, but which is intended, at least, to be reasonably accurate in what it includes, even if not completely free from confusing language and occasional mistakes. This realization leads us to go back to the last Magisterial text which addressed the issue of the death penalty: Pope Saint John Paul II’s encyclical Evangelium Vitae (On the Value and Inviolability of Human Life), issued in March of 1995.

The timing with respect to the Catechism of the Catholic Church is interesting. Readers may recall that the Catechism was originally issued in French in 1994. There followed a period of review, reflection and correction, after which a definitive Latin text was issued in 1997. During the interim, the original text of the Catechism on the death penalty was revised, so that there is a somewhat circular relationship with the 1995 encyclical, in that the encyclical quotes the Catechism before the definitive Latin edition was published, but when it was published, we find that the Catechism had also picked up a revision based on the encyclical. (You can see this in a close examination of number 56, including its footnotes.)

Documentary magisterial weight

The first thing to note is that an encyclical which quotes a catechism to make a point carries a Magisterial weight which a catechism lacks on its own. This is inescapably so because an encyclical is a Magisterial text and a catechism is not. But if you are not yet confused, go to the head of the class.

What is quoted from the original Latin text of the Catechism in the encyclical—and therefore given a Magisterial weight that the newest formulation lacks—is the passage in the offset quote below. “In any event,” says John Paul in Evangelium vitae, “the principle set forth in the new Catechism of the Catholic Church remains valid:”

If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person. [56]

This is one of the two quotes which form the basis for my observation elsewhere that Pope St. John Paul II developed the Church’s teaching on capital punishment by emphasizing that it may be used morally only when actually necessary to protect the community.

I have not quoted the Latin (always important when investigating close questions), but I have also seen this passage translated with the words “will limit” instead of “must limit”, which gives it significantly less force as a formal moral teaching. But earlier in the same section 56, the Pope had made the following points (which, taken together, form one continuous passage):

• “The primary purpose of the punishment which society inflicts is ‘to redress the disorder caused by the offence’.“ [the quotation is from the Catechism]
• “Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime”
• “as a condition for the offender to regain the exercise of his or her freedom.”
• “In this way authority also fulfils the purpose of defending public order and ensuring people’s safety,”
• “while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated [this sentence is footnoted to, but not quoted from, the Catechism].”

Now, with this background, the Pope writes the following—without referencing the Catechism or any other document, so this is “pure encyclical”:

It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.

This is the second statement that causes me to argue Pope John Paul developed the doctrine on capital punishment. In any case, to demonstrate the somewhat circular relationship between the encyclical and the Catechism, I note that the Pope then ends his discussion by writing “Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent”—which is the famous prudential statement which was added to the official Latin edition of the Catechism from Evangelium vitae.

Once again, however, it is the encyclical, not the Catechism, that is a Magisterial document.

Textual magisterial weight

As I indicated, the text of the encyclical (including any quotes from the Catechism) carries a Magisterial weight that a catechism necessarily lacks. But not all sentences in an encyclical carry the same weight. Evangelium vitae is a very long treatise on the gospel of life. It draws the Catholic idea of “the culture of life” from Scripture, explains the nature of the human person and human dignity, and discusses most or perhaps even all of the neuralgic points which plagued society at the time it was written: Not only capital punishment, but contraception, sterilization, abortion, euthanasia, suicide and more. In such a broad and lengthy document, we cannot expect definitive statements about everything.

Indeed, a critical question arises with every exercise of the ordinary magisterium: When is the Pope simply discussing and explaining various issues so that we may see how they unfold and how they fit together in the Christian scheme, and when does he intend to definitively teach some particular point so that there can be no doubt that it is stated precisely as intended with full Magisterial authority?

This interpretive problem—that we often cannot identify, in a long discussion, which points the pope clearly means formally to teach—explains why we commonly say that we know something is infallible either when the pope teaches it in an extraordinary way (making his intention crystal clear) or when the same point is repeatedly stated over time in ordinary Magisterial texts. In the second case, it is the repetition of a teaching which makes it clear this is something that the Magisterium really intends to articulate.

We can see this distinction at work in the text of Evangelium vitae itself. The Pope’s treatment of many items follows an ordinary manner of discussion, attempting to unfold a fairly comprehensive Catholic understanding of each topic, and of the interconnections among the whole range of topics. But some issues are treated very differently. For example, when it comes to abortion, which Evangelium vitae discusses at great length, the Pope concludes:

Given such unanimity in the doctrinal and disciplinary tradition of the Church, Paul VI was able to declare that this tradition is unchanged and unchangeable. Therefore, by the authority which Christ conferred upon Peter and his Successors, in communion with the Bishops who on various occasions have condemned abortion and who in the aforementioned consultation, albeit dispersed throughout the world, have shown unanimous agreement concerning this doctrine, I declare that direct abortion, that is, abortion willed as an end or as a means, always constitutes a grave moral disorder, since it is the deliberate killing of an innocent human being. This doctrine is based upon the natural law and upon the written Word of God, is transmitted by the Church’s Tradition and taught by the ordinary and universal Magisterium. No circumstance, no purpose, no law whatsoever can ever make licit an act which is intrinsically illicit, since it is contrary to the Law of God which is written in every human heart, knowable by reason itself, and proclaimed by the Church. [62]

It is this kind of extraordinarily intensive language which leaves no doubt as to a pope’s intention to formally and officially teach something very specific that must be received as absolutely true—that is, an infallible teaching.

Interpreting the Magisterium on the death penalty

It is very important to note that we have no such language anywhere concerning recent developments on the question of capital punishment. This is one reason it is not yet perfectly clear what we are required by the Church to believe. (Another reason, the one I emphasized in my previous essay, is the prudential character of some of the points at issue.) In yesterday’s commentary, I reiterated my 2004 claim that Pope Saint John Paul II had developed Catholic doctrine on the death penalty by clearly indicating that it may be morally used by the civil authority only when necessary to protect the community. Even though we have no “extraordinary” language to that effect, this is a judgment I expect to be proved correct over time, especially when we trace over the number of times the point has been made by the ordinary magisterium.

Even so, this leaves the question with which I began today’s essay: What does the Church mean by “necessary”? Or to accurately cite the texts in question, how is this moral restriction on the civil authority’s use of the death penalty intended to be understood, as stated in the two quotations from Evangelium vitae, repeated below:

• “It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.” [EV 56]
• “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.” [EV 56, quoted from the Catechism]

What does it mean that the civil authority’s option for capital punishment may not be used morally “except in cases of absolute necessity”, that is, “when it would not be possible otherwise to defend society”, that is, when “bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons”?

Note that I am deliberately leaving aside the whole question of whether capital punishment is necessary as a deterrent. Most studies suggest it is not, but that subject is hardly completely closed. Nonetheless, this essay concerns the need to protect the community from criminals already apprehended.

Thus, the question I am raising turns on the meaning of phrases which, I would argue, cannot be understood in an absolute sense. It is very difficult to imagine, after all, that there could be any condition at any time in history under which the civil authority could not figure out some way to protect society from a criminal without executing the criminal. I suggest, therefore, that here we must distinguish, as we do in end-of-life decisions, between ordinary and extraordinary means.

I consider it unlikely that the Church intends to teach that the civil authority must go to all conceivable lengths to protect the community from a murderer without executing the murderer, any more than the medical community must go to all conceivable lengths to keep every sick or dying citizen alive as long as humanly possible. The very fact that these statements of Pope St. John Paul II rely so heavily on the modern context in their formulation would suggest that they are to be understood in a particular framework of normal possibilities.

Conclusion

Therefore, it seems to me that there must be some distinction between measures that are ordinarily and reasonably possible in a society’s particular circumstances, and measures which would create a significant burden for that society. And if I am correct in this assumption, then the teaching on the obligations of the civil order in this matter—just as with certain questions of medical ethics—are somewhat of a moving target, a target which comes into focus at least partially through a pragmatic lens applied to relative questions of feasibility. I grant that capital punishment and medical ethics approach the question from opposite ends. The decision to actively prolong life and the decision to avoid executing a criminal are not the same. But the question is at least similar: To what lengths is the civil order required to go to avoid a person’s death?

This is an issue that the Church has not settled. It is open for speculation and debate. Yet it lies at the root of the problem of capital punishment which has lately been so much in the news. I warned at the outset that this issue is currently largely of academic interest. Scholars better versed than I in the entire subject will have to develop consistent moral theories and hope that they are not ruled out by future Magisterial determinations.

But the takeaway point for everyone, I believe, is that while we know enough to take a practical position on the use of capital punishment, the theoretical questions surrounding the death penalty are far from closed.