Crime and punishment: A papal bull in the Church’s china shop

By Dr. Jeff Mirus ( bio - articles - email ) | Dec 18, 2018

Pope Francis has decided not only to raise questions about the prudence of capital punishment in our world today but also to cast into doubt centuries of previous Catholic moral teaching on the subject. It is true, to give Pope Francis his due, that there is no single definitive teaching by the Magisterium of the Church which proves beyond a shadow of doubt that he is demonstrably wrong. But all prior ecclesiastical evidence indicates, pace Francis, that capital punishment may be applied morally by legitimate public authority for grave crimes with the purpose of punishing evil and protecting the common good.

Even the latest changes to the Catechism can be interpreted in a manner consistent with this moral tradition. This consistency represents the current state of the teaching of the ordinary Magisterium on the subject, reaffirmed and clarified many times, strongly rooted in Sacred Scripture, and repeated in the Fathers of the Church. But definitive Magisterial statements are in short supply, for the historical reality is that this teaching has been considered so obvious that it has never been thought necessary to make it the subject of either a papal or a conciliar definition.

For this reason, most past papal statements consist of clarifications in various interventions over the centuries which rule out abuses, such as private vengeance, duels, bodily mutilation, or even faulty purposes invoked by the State. There are strong arguments in favor of the legitimacy of capital punishment from Scripture and the Fathers, but the closest thing we have from the Magisterium itself to something absolutely definitive (and it is very, very close) is the Confession of Faith prescribed by Pope Innocent III in 1208, and updated in 1210, for the reconciliation of the heretics Durand Orca and his Waldensian companions. The emendation in 1210 of this text, which was imposed on heretics to ensure their correct understanding of Catholic faith and morals, reads as follows:

Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly. [Denz #425]

The odd wording of this prescription arises because it is a direct response to an error of the heretics, who held that public officials who participate in capital punishment are by that fact guilty of serious sin. But a number of other instances of papal intervention uphold the public authority’s right to apply the death penalty, as opposed (for example) to the sinfulness of private duels (e.g., Leo XIII’s letter to the bishops of Germany and Austria “Pastoralis Officii”, 1891), or (another example) to the sinfulness of bodily mutilation (e.g., the legitimacy of execution is taken for granted in this context by Pius XI’s encyclical Casti Connubii, 1930).

In other words Pope Francis, through a sort of private pontifical willfulness, thinks to overturn the continuous Catholic understanding of Scripture, the Fathers, and papal decisions over the entire history of the Church when he over-zealously asserts that previous Church teachings upholding the legitimacy of capital punishment were “more legalistic than Christian”, and claims to have changed the Catechism as a way of “taking responsibility for the past” by acknowledging the flaws in past statements.

This is very brash indeed. Of course, the Pope could easily highlight today’s neuralgic point, without any scandal whatsoever, by issuing a clear statement such as the following:

Without in any way casting doubt on Scripture, the Fathers and past papal statements on this issue, I wish to call attention to a concern that is very important in our own time: With reference to the death penalty, in the past the Church has rightly upheld what is strictly morally permissible to the civil authority, but she has not addressed whether or not it would be wiser to forego what is morally permissible—but not morally required—in favor of a different approach, an approach to punishment which accentuates the value of even the lives of those guilty of grave crimes. It is precisely this which I wish to address.

I advise all men and women, therefore, that it is better to forego capital punishment whenever that can be done without endangering the innocent, which I believe is almost universally possible in our time. I urge all men and women of good will to seek to change the laws of their own states and countries to reflect this better course of action. At the same time, I cannot fail to acknowledge that, within just moral limits, the protection of the common good—including the possibility of capital punishment in any given case—is the province of the civil authority, and cannot be predetermined by the Church.

The preceding text, again, is imaginary. But those who take the continuity of Catholic teaching seriously—those who understand that the development of doctrine excludes self-contradiction—have naturally insisted that Pope Francis’ revision of the Catechism must be understood in this evangelical and prudential sense. In fact, it is still possible to understand the Pope’s dubious claim that past teaching has been “more legalistic than Christian” in this sense. In doing so, we would admit the possibility that the purpose of past teaching on this subject has been to delineate precisely what is permissible rather than to exhort the faithful to seek what is best.

It would be very like Pope Francis, after all, to dismiss clear articulation of the truth as “legalistic”. But the Catholic faithful are under no requirement to attempt to reconcile every papal remark with past Catholic teaching, for we are not bound by every papal remark. Sadly, it has never been Pope Francis’ way to speak precisely and consistently—or even with a due humility in testing his own ideas against those of his predecessors. We cannot know whether this arises from personal instability or from a personal participation in our epidemic cultural pride, but either way we must endure a pontificate which seems blissfully unaware of our inherited Catholic understanding of the Gospel of Christ, as articulated over nearly two thousand years by inspired authors, Church Fathers and Doctors, saints, synods, councils, and previous popes.

The problem is clear, is it not? If we can so easily dismiss what the Church has consistently taken for granted (or even specifically upheld) in one area, what is to stop us from doing the same in every area? This is precisely the approach taken by so many academic theologians today, who fail to realize they are not the creators but the servants of Revelation—Revelation, without which both the words “theologian” and “magisterium” lose their meaning.

It is a sadness and a suffering for Catholics that today’s Church has something of the delicacy of a china shop, and today’s successor of Peter shows a marked tendency to stamp and snort like a papal bull. As St. Paul wrote to the Thessalonians (1 Thes 5:19-22), we must not quench the Spirit, and must not despise prophesying. Certainly not! But this does not exhaust our responsibility. We must also test everything, and hold fast what is good.