The Catechism and Capital Punishment: A Reply to Annett

What binds Catholics? Francis's 'Magisterium of Now' or Scripture and the teaching of the Fathers and Doctors, and every previous Pope?

From Edward Feser, PhD

Some years back, in my article “Three questions for Catholic opponents of capital punishment,” I argued that Pope Francis’s statements on the death penalty cannot plausibly be read in a way that would make assent to them binding on Catholics.  This week, in an article at Where Peter Is, Tony Annett offers a reply.  Let’s take a look.

Criticizing Catholic teaching?

Let me start out by saying that I appreciate Annett’s attempt seriously to respond to the article.  In the years since it was published, I have found that its critics almost always simply dismiss its conclusion without addressing the arguments for that conclusion, or at best raise objections that obviously beg the question.  Though I don’t think his own objections succeed, I give Annett credit for trying to do better than that.  Many readers will be aware that Annett is a sparring partner of mine on Twitter, and that our exchanges are sometimes heated.  So I also appreciate that he responds here in a civil manner.

Having said that, it is unfortunate that Annett misrepresents my position from the get go (even if, I am happy to allow, inadvertently).  He characterizes my article as “criticizing Catholic teaching on the death penalty.”  That is not correct.  By “Catholic teaching” Annett presumably has in mind teaching that the Church requires the faithful to assent to.  I do not criticize, and would not criticize, any such teaching.  My article addresses the question whether Pope Francis’s thoroughgoing abolitionist position vis-à-vis the death penalty actually is in fact a teaching to which Catholics must assent, or is instead a prudential judgment which they must consider respectfully but are not bound to assent to.  I argue that it is the latter, and that there is no other plausible way to read it when all the relevant evidence is considered.

I realize that Annett disagrees with me about this.  That’s fine, he has every right to try to make the case that I am mistaken.  But charity and justice require him to represent my position accurately before criticizing it. 

On Twitter, Annett routinely characterizes all disagreement with the pope’s statements on capital punishment as “dissent.”  Now, I am no less opposed than Annett is to dissent from Catholic teaching.  But the Church has made clear that not all criticism of statements that come from the Magisterium constitutes “dissent.”  The document Donum Veritatis, issued during the pontificate of Pope St. John Paul II, acknowledges that in exceptional cases “it can happen… that a theologian may… raise questions regarding the timeliness, the form, or even the contents of magisterial interventions.”  The document elaborates as follows:

When it comes to the question of interventions in the prudential order, it could happen that some Magisterial documents might not be free from all deficiencies.  Bishops and their advisors have not always taken into immediate consideration every aspect or the entire complexity of a question…

If, despite a loyal effort on the theologian's part, the difficulties persist, the theologian has the duty to make known to the Magisterial authorities the problems raised by the teaching in itself, in the arguments proposed to justify it, or even in the manner in which it is presented.  He should do this in an evangelical spirit and with a profound desire to resolve the difficulties.  His objections could then contribute to real progress and provide a stimulus to the Magisterium to propose the teaching of the Church in greater depth and with a clearer presentation of the arguments.

Donum Veritatis then goes on explicitly to say that this sort of respectful criticism “must be distinguished” from “dissent” from the Church’s binding teaching.

In another article, I examine Donum Veritatis in greater detail, along with other relevant teaching from Catholic tradition.  I show that “dissent” is essentially about trying to subvert the traditional teaching of the Church, so that those who defend continuity with traditional irreformable teaching cannot justly be accused of dissent when they merely ask the Magisterium more clearly to reaffirm such teaching.  I also show that the Church allows criticism of deficient magisterial statements to be made publicly under certain conditions. 

I won’t rehash all of that here.  Again, see that earlier article (as well as a couple of follow-up pieces, one of which discusses in greater detail Aquinas’s teaching on this subject, and the other of which discusses Pope Francis’s own repeated acknowledgment that certain kinds of criticism of popes can be legitimate).  The point for present purposes is that nothing that I have said about Pope Francis’s teaching on capital punishment amounts to “dissent.”  All of it falls within what Donum Veritatis and other traditional teaching allow to be within the range of legitimate criticism of magisterial statements.

Indeed, I have not even accused Pope Francis of doctrinal error, even though that is in principle possible when popes are not speaking ex cathedra.  What I have said is that some of his statements on the topic of capital punishment are too imprecise, or ambiguous, or fail to address all the relevant considerations, or are otherwise potentially misleading.  I have also said that the change he has made to the Church’s presentation of her teaching on capital punishment is prudential in nature – something Annett seems to agree with (as we’ll see below).

Now, noting that a prudential intervention lacks sufficient clarity, or fails to address all the relevant aspects of an issue, or is otherwise deficient, is something that Donum Veritatis explicitly says can be legitimate and does not amount to “dissent.”  Hence it is unjust for Annett to characterize my position as “dissent” or as “criticizing Catholic teaching.”  I have said nothing except what the Church herself allows to be within the permissible range of debate.

At the very least, even if Annett thinks I am wrong about that too, the burden is on him actually to make the case that I am wrong about it.  And that entails that he needs carefully to read and consider the arguments I have given in articles like the ones just linked to, and show that I am wrong about what the Church permits in the way of criticism of magisterial statements.  Unless he does that, he is simply committing the fallacy of begging the question by asserting that my position amounts to “dissent.”

A false binary?

So much for preliminaries.  Let’s turn now to Annett’s objections.  The main point of contention concerns the pope’s 2018 revision to section 2267 of the Catechism of the Catholic Church, which now reads:

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.  There’s a lot that can be said about this, as we’ll see.  But the first question to ask concerns the force of the statement that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.”  As I say in the article to which Annett is replying, there are two ways to read it.  First, one could read it as claiming that the death penalty is always and intrinsically wrong, and thus ruled out absolutely and in principle.  Or second, one could read it as claiming that while the death penalty is not always and intrinsically wrong, current circumstances support the judgment that it should no longer ever be used. 

As I went on to argue in the article, if the first interpretation is correct, then the revision to the Catechism would contradict the consistent and irreformable teaching of scripture and 2,000 years of tradition that capital punishment can be legitimate at least in principle.  In that case, it would amount to a straightforward doctrinal error (which is possible when popes are not speaking ex cathedra) and should not be assented to. 

On the other hand, if the second interpretation is correct, then the revision to the Catechism amounts to a prudential judgment – an application of doctrinal principle to concrete circumstances in light of certain empirical assumptions, such as assumptions about what methods of punishment are sufficient today to protect society.  In that case, a Catholic need not assent, because the Magisterium has no special expertise with respect to the empirical assumptions in question.  For example, the empirical question of whether all governments today are in fact capable of protecting their citizens without ever resorting to capital punishment is simply not something about which popes or other churchmen have any special knowledge.  (I’ll return to this point below.)

To this line of argument, Annett objects that “this distinction between intrinsic evils and prudential judgments is problematic and offers a false binary.”  Now, one would naturally expect from this remark that Annett would propose a third alternative reading of the revision to the Catechism – a reading on which it is neither teaching that capital punishment is intrinsically evil nor proposing a prudential judgment about its applicability today.

Oddly, though, Annett proposes no such third alternative reading.  What he does instead is, first, to point out that not everything that is intrinsically wrong is gravely wrong, whereas some prudential judgments do concern grave moral matters.  Now, Annett is right about that much, but I never denied it.  For example, I have never claimed that all and only intrinsically wrong acts are gravely wrong acts.  And I have never denied that prudential judgments can concern matters of grave moral importance.  So Annett is just attacking a straw man here.

Moreover, Annett says that he is “willing to concede that the death penalty might not be intrinsically evil.”  And after noting that “prudential judgements… could entail gravely evil acts,” he says that while “in some past societies, it might have been simply impossible to constrain the malefactor without recourse to the death penalty,” today “this argument no longer applies.”  That indicates that he thinks that the revision to the Catechism does after all amount to a prudential judgment.  But it’s a prudential judgment about a matter of grave moral importance.

In this case, though, Annett has not shown that I have proposed “a false binary.”  On the contrary, he implicitly concedes that there really are, after all, only two ways to read the revision to the Catechism – namely, either as claiming that the death penalty is intrinsically evil, or as making a prudential judgment to the effect that it is no longer needed today – and he opts for the second reading rather than the first.

The “false binary” charge, then, is incorrect, and a red herring.  On closer inspection, Annett’s real objection seems to be that while there are indeed only two alternative readings of the revision to the Catechism – and the second, “prudential judgment” reading is the correct one – nevertheless, Catholics are bound to assent to this prudential judgment.  Why?  Because it concerns a matter of grave moral importance.

But now we have another problem with Annett’s argument, which is that it is a non sequitur.  He is implicitly assuming that if a prudential judgment concerns a grave moral matter, then it follows that assent to it is binding on Catholics.  And that is not true.  Indeed, the Church herself has told us that that is not true.

St. John Paul II on war, capital punishment, and prudential judgments

To see this, let’s take a look at the teaching of Pope St. John Paul II on matters of war, capital punishment, and prudential judgments.  This teaching is not only important in itself, but crucial for properly understanding the teaching of Pope Francis.  For as Annett himself emphasizes, Francis’s teaching is meant as an extension of John Paul II’s teaching.  Annett thinks that this supports the conclusion that Catholics are obligated to assent to Francis’s teaching.  What he does not realize is that it actually undermines that conclusion, and reinforces the view that Pope Francis’s teaching is a prudential judgment that need only be respectfully considered but not assented to.  For John Paul II’s teaching on capital punishment was itself clearly merely prudential and non-binding.  And that is true even though it concerned matters of grave moral importance.

Consider first what Pope John Paul II had to say about the topic of war.  The Catechism he promulgated reasserts the Church’s traditional just war teaching, which states that a war can be justified only under certain conditions – that it is necessary to defend society against lasting, grave and certain harm by the aggressor, that there be serious prospects of success, and so forth (section 2309).  This much is a matter of doctrinal principle to which Catholics are obligated to assent.  But what about questions concerning whether some particular war meets just war criteria?  For example, whose responsibility is it to determine whether a particular war really is necessary to defend society against an aggressor, or whether it has a serious chance of success?  Here the Catechism states:

The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good. 

Public authorities, in this case, have the right and duty to impose on citizens the obligations necessary for national defense. (sections 2309-2310)

It is not churchmen, then, but public authorities – government officials, military leaders, and the like – who have the right and responsibility to apply just war teaching to concrete circumstances.  Why?  Because they, and not churchmen, are the ones with the relevant competence.  For example, popes have special competence to issue the moral teaching that a war can be just only if it has a serious prospect of success.  But they do not have any special competence to determine whether some particular war is likely to succeed.  For example, their office does not give them any special knowledge about which military tactics are the most effective ones, what the enemy’s troop strength is and how able its commanders are, and so on. 

Notice that this remains true even though churchmen might, like anyone else, have opinions about such matters.  Pope John Paul II certainly had opinions about specific wars, having famously opposed the Iraq War, for example.  But even though he stated his opposition publicly, repeatedly, and in strongly moralistic terms, Catholics were not obligated to agree with him, as the Church made clear at the time.  For example, Cardinal Ratzinger, the pope’s chief doctrinal officer (and later to become Pope Benedict XVI) said, of John Paul II’s opposition to the Iraq War, that the pope “did not impose this position as doctrine of the Church.”  Similarly, Bishop Wilton Gregory, then president of the United States Conference of Catholic Bishops, stated at the time that “people of good will may and do disagree on how to interpret just war teaching and how to apply just war norms to the controverted facts of this case.”

Now, in hindsight one could certainly argue that the pope and other churchmen who criticized the Iraq War were in the right.  But that doesn’t change the fact that their prudential judgment on this matter was not binding on Catholics.  And that is true even though it concerned a matter of grave moral importance.  The Church herself teaches, in the Catechism, that despite the grave moral importance of matters concerning war, it is governing authorities, and not churchmen, who have the responsibility to apply just war criteria to concrete circumstances.  And consequently, the Church herself also acknowledged that the pope’s condemnation of the Iraq War, despite being a prudential judgment about a grave matter (and indeed, a judgement that in hindsight was arguably correct), was not something that Catholics were obligated to assent to.

Hence Annett is simply mistaken to suppose, as he implicitly does, that the gravity of the subject matter of a prudential judgment suffices to make assent to it binding on Catholics.

But is capital punishment different?  Are papal prudential judgments on that topic binding on Catholics in a way prudential judgments about the application of just war theory are not?  No, there is no difference.  And once again, the teaching of the Church under Pope John Paul II makes this clear. 

For one thing, that there is no difference clearly follows from the relevant general principles.  John Paul II famously held that in modern circumstances, capital punishment should be used only “if this is the only possible way of effectively defending human lives against the unjust aggressor” (as the 1997 version of section 2267 of the Catechism put it).  Otherwise, the Catechism says, non-lethal means should be used.  But how do we know whether non-lethal means are sufficient to protect people from unjust aggressors?  Is that something about which churchmen have any special competence?  Clearly, it is not, any more than they have any special competence of a military kind.  To know whether non-lethal means are adequate, we need to know, for example: whether capital punishment has any significant deterrence value; whether all modern prisons throughout the world are secure enough to prevent the escape of dangerous offenders; whether other prisoners can be kept safe from murderous ones; and so on.  These are empirical matters which require expertise in social science, law, criminal justice, and the like.  Popes are no more experts in these areas than they are experts in military strategy and tactics.

In the very nature of the case, then, the question of whether capital punishment is still needed today is not something about which popes could issue a binding judgment any more than they could issue a binding judgment about whether some specific war meets just war criteria.  By parity of reasoning with the case of applying just war theory, the final determination of whether resort to capital punishment is ever needed must lie, not with churchmen, but with “the prudential judgment of those who have responsibility for the common good,” namely “public authorities” (to borrow the language the Catechism uses when addressing the application of just war principles).

Moreover, the Church herself explicitly said during the pontificate of John Paul II that the cases are parallel. 

The Ratzinger memorandum

This brings us to an important document that Catholic opponents of capital punishment routinely ignore.  During the 2004 U.S. presidential election, the question whether Catholic politicians who support abortion or euthanasia should be denied Holy Communion became a hot button issue.  Some suggested that if these politicians were denied Communion, then Catholic politicians who supported capital punishment or the Iraq War should be denied it as well.

To clarify the matter, Cardinal Ratzinger, who was then Prefect of the Congregation for the Doctrine of the Faith, sent a memorandum titled “Worthiness to Receive Holy Communion: General Principles” to then-Cardinal Theodore McCarrick, who was at the time the archbishop of Washington, D.C.  (McCarrick has, of course, since been disgraced and defrocked, though that is irrelevant to the present issue.)  Ratzinger noted that the cases are not at all parallel, writing:

Not all moral issues have the same moral weight as abortion and euthanasia.  For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion.  While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment.  There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.

Notice several things about this teaching.  As is well known, Pope St. John Paul II held that the cases where capital punishment is necessary to protect society are “very rare, if not practically nonexistent” (as the 1997 version of the Catechism puts it).  Indeed, the pope made even stronger statements at other times, calling the death penalty “cruel and unnecessary” and calling for its outright abolition.  All the same, Ratzinger acknowledged that “there may be a legitimate diversity of opinion even among Catholics about… applying the death penalty,” and indeed that a Catholic in good standing could even be “at odds with the Holy Father” on the subject.  He could not have said that if assent to the pope’s position was obligatory.  And notice that this is true even though the pope’s prudential judgment concerned a matter of grave moral importance, and was put forward publicly, repeatedly, and in stern moralistic terms.

Note also the reference to “civil authorities,” and how war and recourse to capital punishment can in some cases be permissible despite the fact that the Church urges such authorities to seek peace and exercise mercy on criminals.  The clear implication is that it is ultimately civil authorities who have the responsibility to make a prudential judgment about whether capital punishment is necessary, just as they have the responsibility to determine whether war is necessary.

Now on Twitter recently, Annett dismissed the memorandum as merely “a private opinion of Joseph Ratzinger.”  But this is clearly not the case.  Ratzinger was writing, not as a private theologian, but precisely in his official capacity as Prefect for the Congregation of the Doctrine of the Faith.  And he was writing to a fellow bishop precisely to clarify for him a matter of Church doctrine and discipline.

Furthermore, the passage from the memo quoted above was incorporated almost verbatim into a USCCB document written by Archbishop William Levada (who would later succeed Ratzinger as head of CDF).  The purpose of this document was precisely to clarify for Catholics the same issues Ratzinger aimed to clarify in his memo.  And the fact that a USCCB document incorporates the passage in question obviously indicates that it has doctrinal weight, and is not merely Ratzinger’s personal opinion.  It is worth adding that E. Christian Brugger, who is the preeminent opponent of capital punishment among Catholic theologians, acknowledges in the second edition of his book Capital Punishment and Roman Catholic Moral Tradition that the memo was written by Ratzinger “as prefect of the CDF” (p. xxviii).

Now, keep in mind that as head of CDF, Ratzinger’s job was to be Pope St. John Paul II’s doctrinal spokesman.  Hence he was an authoritative interpreter of the pope’s teaching on the issue of capital punishment.  Since he explicitly said that there could be “a legitimate diversity of opinion” about the matter even among faithful Catholics – and indeed, that faithful Catholics could even be “at odds with” the pope on the matter – it follows that Pope John Paul II’s position that capital punishment is no longer needed was not something Catholics are obligated to agree with.

This brings us back to Pope Francis.  For the main difference between John Paul’s teaching and Francis’s teaching is that the former allowed that there may still be rare cases where capital punishment is needed in order to protect society, whereas the latter denies that.  Even Pope Francis’s appeal to the “dignity of the person” is not novel, because Pope John Paul II made the same appeal when criticizing capital punishment.  For example, the 1997 edition of the Catechism says that non-lethal means of dealing with offenders are preferable because they are “more in conformity with the dignity of the human person.”

Now, John Paul II’s view that the cases where capital punishment are still needed to protect society are “very rare, if not practically nonexistent” was of its very nature a prudential judgment concerning matters of social science, law, criminology, etc. about which popes have no special expertise.  For that reason, as Cardinal Ratzinger made clear, Catholics were not obligated to agree with that judgment.  But Francis’s view that non-lethal means are in every case sufficient to “ensure the due protection” of society is also, of its very nature, a prudential judgment concerning matters of social science, law, criminology, etc. about which popes have no special expertise.  So, how can Catholics be obligated to assent to the latter view any more than they were obligated to assent to the former?  What the Ratzinger memorandum says about John Paul’s teaching applies mutatis mutandis to Francis’s teaching.

Development of doctrine?

Annett claims that Pope Francis’s revision to the Catechism involved a “development of doctrine,” one that reflects an “unfolding understanding of the nature of human dignity.”  It is this development, Annett suggests, that underlies the pope’s moving beyond John Paul II’s allowance for capital punishment in rare cases to an absolute prohibition of the penalty.

But exactly how does the purported doctrinal development support this revision?  The claim cannot be that this unfolding understanding of human dignity shows capital punishment to be intrinsically wrong (and thus “inadmissible” for that reason).  Again, that would contradict the consistent and irreformable teaching of scripture and 2,000 years of tradition.  And again, Annett himself explicitly says that he is not claiming that capital punishment is intrinsically wrong.

Like Francis, John Paul II also appealed to respect for human dignity, yet still stopped short of an absolute prohibition.  The reason is that John Paul II allowed that there may be rare cases where capital punishment is still practically necessary.  Francis denies this.  But again, that is a prudential judgment grounded in empirical claims about modern prison facilities and the like.  There is nothing in the notion of human dignity as such that entails that such-and-such a prison system is effective.

So, it is unclear exactly how a purportedly better understanding of human dignity justifies the change from John Paul II’s teaching to Francis’s.  Nor does Annett explain how it does.  He just asserts that it does, and repeats phrases like “human dignity” and “dignity of the person” as if the repetition by itself sufficed to show that capital punishment was somehow a special affront to human dignity.

Sometimes it is claimed that, whatever one thinks of Pope Francis’s revision, Pope John Paul II’s teaching on capital punishment already marked a development of doctrine.  But as Joseph Bessette and I show in our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, that is not the case.  At pp. 144-82 of the book, we offer a detailed and systematic analysis of all the relevant magisterial texts issued during John Paul II’s pontificate.  We show that John Paul II’s change to previous teaching was entirely prudential in nature and in no way doctrinal. 

To be sure, it is sometimes claimed that John Paul II made it a matter of doctrinal principle that capital punishment could never even in theory be used except when strictly necessary for the defense of society.  But we show that the pope’s confining of the use of capital punishment to the defense of society was itself a prudential judgement, not a doctrinal principle.  And the Church has confirmed this.  After Evangelium Vitae was issued and it was announced that John Paul II would be updating the Catechism in light of it, Fr. Richard John Neuhaus inquired with Cardinal Ratzinger about whether this amounted to a doctrinal revision.  As the cardinal said in reply in a letter published in First Things in October 1995, “the Holy Father has not altered the doctrinal principles which pertain to this issue as they are presented in the Catechism, but has simply deepened the application of such principles in the context of present-day historical circumstances.”

As we also show in the book, such an alteration would itself contradict the teaching of scripture, the Fathers, and previous popes, which clearly holds that it can be legitimate at least in principle to use capital punishment even for purposes other than the defense of society.  For example, several scriptural passages (such as Genesis 9:6, Numbers 35:33, and Deuteronomy 19:11-13) teach that it can be legitimate simply for the purpose of securing retributive justice.  That does not entail that that is by itself a good enough reason to resort to capital punishment in modern circumstances.  But since the Church holds that scripture cannot teach moral error, it follows that it cannot possibly be intrinsically wrong to inflict the death penalty simply for the sake of retribution.

So, the claim that Pope Francis’s revision to the Catechism amounts to a development of doctrine cannot be defended by appeal to its connection with John Paul II’s teaching.  For again, John Paul II’s teaching was itself not a development of doctrine.  If Annett denies this, I direct him to pages 144-82 of By Man Shall His Blood Be Shed, where he’ll find the evidence laid out.  I’d be happy to listen to any objections he’d raise against the arguments we set out there.

Annett makes another problematic claim about the development of doctrine when he says that “the correct hermeneutic is to read past teaching in light of current teaching rather than vice versa.”  This is misleading at best.  It is true that the Magisterium is the authoritative interpreter of scripture and tradition.  But that does not entail license to teach just anything, as the Church herself has repeatedly insisted.  For example, the First Vatican Council teaches:

For the Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles.

and

That meaning of Holy Scripture must be held to be the true one, which Holy mother Church held and holds, since it is her right to judge of the true meaning and interpretation of Holy Scripture.  In consequence, it is not permissible for anyone to interpret Holy Scripture in a sense contrary to this, or indeed against the unanimous consent of the fathers.

Similarly, the Second Vatican Council teaches:

[T]he living teaching office of the Church… is not above the word of God, but serves it, teaching only what has been handed on, listening to it devoutly, guarding it scrupulously and explaining it faithfully.

And Pope Benedict XVI taught:

The Pope is not an absolute monarch whose thoughts and desires are law.  On the contrary: the Pope's ministry is a guarantee of obedience to Christ and to his Word.  He must not proclaim his own ideas, but rather constantly bind himself and the Church to obedience to God's Word, in the face of every attempt to adapt it or water it down, and every form of opportunism.

This entails that while the Church can settle disputes over scriptural interpretation, she can never teach something contrary to scripture, or contrary to the way scripture was understood by the Fathers of the Church or to what the Church has traditionally held scripture to mean.

This is one reason why the Church cannot ever teach that capital punishment is intrinsically evil.  For as Joe Bessette and I demonstrate in By Man Shall His Blood Be Shed, scripture clearly and consistently teaches that capital punishment can be legitimate in principle, the Fathers unanimously understood scripture to teach this, and the Church has always understood scripture to teach this.  This teaching is thus irreformable.

As such, the traditional teaching puts constraints not only on what the Church may currently teach, but on how to interpret what the Church currently teaches.  For example, if some recent magisterial statement seems, when considered in isolation, to teach that capital punishment is intrinsically wrong, but could instead be interpreted in a way that is consistent with capital punishment not being intrinsically wrong, then the latter interpretation must prevail.  In that way, current teaching must, contrary to what Annett says, be read in light of past teaching. 

That is by no means to deny that we must also read past teaching in light of current teaching.  It means that Annett is posing a false choice when he says that we must read the past in light of current teaching “rather than” the other way around.  It’s not a matter of “rather than,” but of “as well as.”  But where there is any outright conflict or appearance of such a conflict, it is indeed past teaching that must prevail.  That is not only the implication of the statements from Vatican I, Vatican II, and Benedict XVI quoted above, but also the teaching of the Church’s great theologians of the development of doctrine, St. Vincent of Lerins and St. John Henry Newman.

Problems with the revision to the Catechism

Now, one of the problems with the 2018 revision to the Catechism is that some of what it says does seem, at least considered in isolation, to contradict past teaching.  In particular, it does so when it quotes a remark from Pope Francis to the effect that the death penalty “is an attack on the inviolability and dignity of the person.”  This statement seems, given its unqualified formulation, to be saying that the death penalty is intrinsically, or of its very nature, an attack on the inviolability and dignity of the person.  And thus it seems, at least when considered in isolation, to be saying that the death penalty is intrinsically wrong.

To be sure, the statement does not have to be read that way.  Given the larger context, it can be read instead as teaching that the death penalty is contrary to human dignity if certain conditions on its use are not met.  And that is indeed the way I think it should be read.  As I have said, I do not claim that the pope has taught doctrinal error on this point, but rather that he has spoken without sufficient precision.  And he has a record of doing so.  In the article Annett is responding to, I call attention to other examples, such as Pope Francis’s once quoting approvingly a line from Dostoevsky to the effect that “to kill a murderer is a punishment incomparably worse than the crime itself.”  Taken at face value, this statement is manifestly absurd, and certainly contrary to scripture and the traditional teaching of the Church.

No doubt the pope was here speaking with rhetorical flourish rather than literally.  And perhaps that is also the case with the line quoted in the revised passage of the Catechism.  But when teaching on doctrinal matters, popes have a grave duty to speak with precision, especially in documents like Catechisms.  Hence it is perfectly legitimate, in light of the norms outlined in Donum Veritatis, respectfully to criticize the 2018 revision of the Catechism for failing to do so.

Another problem with the revision to the Catechism concerns its prudential judgement to the effect that “effective systems of detention have been developed, which ensure the due protection of citizens” without ever having to execute offenders.  This is far from obviously true.  Indeed, I would argue that it is false.

There are several relevant considerations here.  First, the Catechism simply assumes, without argument, that capital punishment has no deterrence value.  But that is a question of social science, not theology.  And social scientists disagree on the matter, with many holding that the death penalty does in fact deter when offenders know there is a good chance they really will be executed if they commit a murder.  Joe Bessette and I set out the evidence in our book, and defend the claim that capital punishment has significant deterrence value.

Now if that is correct, then innocent lives are endangered by abolishing capital punishment, in which case the Catechism’s prudential judgement that “due protection of citizens” can be achieved without capital punishment is mistaken.  Of course, whether the death penalty really does deter is controversial.  But the point is that, of its nature, this is not a matter of theological principle but rather an empirical question about which churchmen have no special expertise.  

Another important consideration is that some offenders remain threats to the lives of others even when effectively imprisoned.  Organized crime leaders can order murders from behind prison walls.  Some imprisoned murderers kill prison guards or fellow prisoners.  And if capital punishment is entirely off the table, then they have no incentive not to do so if they are already in prison for previous murders.  Then there are those sentenced to life in prison who escape from prison.  What is to prevent them from killing while on the run, if the threat of capital punishment does not hang over them?  For they already face a resumption of their life sentences if recaptured. 

Having the option of threatening offenders with capital punishment also gives the prosecutor an invaluable tool for convincing them to plea bargain.  And this can save innocent lives if the cooperation of such offenders helps police catch other murderers.  Then there is the fact that it is simply not true that systems of imprisonment sufficient to protect citizens exist everywhere in the world.  Yet the revision to the Catechism does not acknowledge this.  It simply speaks of abolishing capital punishment worldwide, full stop, rather than abolishing it when and where it is safe to do so.

Naturally, a critic of capital punishment might try to develop responses to these points.  But again, they are not matters that can be settled by appeal to abstract theological principle.  Like the question of how to apply just war theory to particular cases, determining whether capital punishment is still necessary to protect citizens requires a prudential judgement about matters that popes and bishops have no expertise about.  And as with the application of just war theory, the decision must ultimately be made by the public authorities who have the responsibility for protecting citizens, not churchmen.  This is why the Ratzinger memorandum acknowledges that “there may be a legitimate diversity of opinion even among Catholics” about capital punishment.  It is simply not the sort of thing the Church can reasonably foreclose public debate about. 

Finally, I would argue that it is in any event a bad idea to insert prudential judgments into the Catechism, and especially to keep changing them (as the Catechism’s statement on the death penalty has now been changed two times).  It confuses the average person, who typically does not understand the difference between matters of doctrine and prudential applications of doctrine, and therefore wrongly comes to think that the Church has changed or could change the longstanding teaching of scripture and tradition.  This makes it seem in turn as if everything the Church teaches might be “up for grabs.” 

Again, these criticisms of the revision to the Catechism in no way constitute “dissent” from binding Catholic teaching.  They are entirely within the range of the respectful criticism that Donum Veritatis acknowledges to be permissible.  And to those faithful Catholics who respectfully raise criticisms of deficient magisterial statements, Donum Veritatis offers the following reassuring words:

For a loyal spirit, animated by love for the Church, such a situation can certainly prove a difficult trial.  It can be a call to suffer for the truth, in silence and prayer, but with the certainty, that if the truth really is at stake, it will ultimately prevail.