Pope Francis, the death penalty and changing Christian moral teaching

The announcement that Pope Francis has altered Roman Catholic moral teaching on the death penalty, and the fuller justification of this decision in the letter to bishops from the Congregation for the Doctrine of the Faith open up a host of interesting and important ethical and ecclesiological questions.  Although his action appears to have the support of some traditional, conservative Catholic (such as Professors Robert P. George and Patrick Lee), others have strongly critiqued it (e.g Edward Feser and Michael Pakaluk) and it is already further stoking the divisions among Roman Catholics about this issue and about Pope Francis and his papacy more widely with Commonweal commenting

From the quick reaction in some quarters to the Vatican’s announcement that the Catechism of the Catholic Church will henceforth state that the death penalty is “inadmissible,” one might think Pope Francis had just ordered the execution of a lineup of conservative theologians.

What is the change in teaching?

Historically, the Christian church has been supportive of the right of the political authority, divinely authorised in “bearing the sword” (Rom 13 cf also Gen 9.5-6), to punish those found guilty of murder (and other crimes, sometimes relatively minor ones) by capital punishment.   Article 37 of the Church of England’s 39 Articles for example states that “The Laws of the Realm may punish Christian men with death, for heinous and grievous offences”.  From the early centuries, however, Christian leaders regularly appealed for mercy from authorities planning the judicial execution of criminals and in the course of the last century there has been an increasing tendency, including from recent Popes, to develop this into more of a general policy expressing strong sympathy for moves to abolition of the death penalty.

The Roman Catholic Catechism, in its exposition of the Fifth Commandment, reflected these two elements in para 2267. It opens by stating

Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

It then continues

If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.  Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically nonexistent" (quotation from Pope John Paul II).

What Pope Francis has now done, as he signalled he wished to do last October on the 25^th anniversary of the Catechism, is to rewrite this teaching to prohibit totally what was previously (albeit under certain very clear conditions) permitted.  The Catechism will now read

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 (emphasis added, the quotation is from Pope Francis speaking in 2017).

What is the reasoning?

If we ask why this change has taken place there are important and serious questions of moral reasoning to be raised.  There are three strands of reasoning in the new wording to justify (“Consequently….”) the new teaching. (The earlier October address signalling this change gave a wider context and rationale (rooted in the primacy of love) and the relevant section is reproduced as an appendix at the end of this article but not examined in detail here).

Working backwards the first relates to circumstances – we can protect citizens from criminals without killing the guilty so should not kill them but give them more time to experience redemption.  This, however, was recognised before, but there was then a recognition that such circumstances do not always pertain.  This reason encourages us to work to create such circumstances and to insist on abolition when they exist but they cannot justify a universal and absolute moral prohibition.  The previous teaching set down the requirement that “execution of the offender” be “an absolute necessity” and the only way of protecting others.  Neighbour-love and the pursuit of justice, which require public authority to protect (in part by means of punishment) society’s members from those who would harm them, may, paradoxically and tragically, at times require public authority to execute a guilty and dangerous neighbour.  Even were we to grant that in all places in the world at present “effective systems of detention have been developed, which ensure the due protection of citizens” (a debatable point), this in itself, as a social condition, cannot justify the proposed change to an absolute moral prohibition.

Secondly, reference is made to “a new understanding…of the significance of penal sanctions imposed by the state” but the nature of this and why it leads to the development of church teaching is not explained in the Catechism’s new wording.  The letter gives a little more attention to this, speaking of “the new understanding of penal sanctions applied by the modern State, which should be oriented above all to the rehabilitation and social reintegration of the criminal”.  This argument is, however, also unable to produce the conclusion that the death penalty is never admissible unless the restorative aspect of punishment always over-rides the retributive and restraining/protective aspects.  However, the letter also makes clear that “it remains the duty of public authorities to defend the life of citizens, as has always been taught by the Magisterium and is confirmed by the Catechism of the Catholic Church in numbers 2265 and 2266” and so it is possible that this duty may, in certain circumstances, require use of capital punishment even though that ends the prospect of rehabilitation.

Thirdly, and decisively, the argument is based on an appeal to the dignity of the human person and its absolute inviolability. The Catechism therefore speaks of “an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes”.  Modern defenders of capital punishment do not usually support their view by stating that the guilty criminal has lost his or her personal dignity but Aquinas did do so as part of his defence of killing sinners.  Here we get to the nub of the argument – is the assertion in the quotation from Pope Francis’ October address which is included in the Catechism true?: “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”.

A number of key questions are raised by this line of reasoning but go unanswered in the new catechism statement and supporting letter, notably

1. how we determine whether or not a particular action is “an attack on the inviolability and dignity of the person”,
2. whether actions of this form are ever able to be justified as forms of punitive action (and if so how) or whether rejection of them is an exceptionless moral absolute,
3. how one persuades secular political authority to accept the Catechism’s new line of thinking given the conclusion is reached “in the light of the Gospel”, and
4. what else follows from this new teaching ruling out absolutely any “attack on the inviolability and dignity of the person” and seeing capital punishment as always such an attack.

None of these questions can be adequately addressed in a short article (as there are a range of possible answers to each and different combinations might lead to the same or opposing practical conclusions) but one area where these questions now become particularly pressing is that which is addressed in the next sentence of Article 37 of the Church of England’s Articles – “It is lawful for Christian men, at the commandment of the Magistrate, to wear weapons, and serve in the wars”.

In relation to war there has been a similar trajectory in Roman Catholic teaching over recent decades as in relation to capital punishment.  This has emphasised strongly the need to work to eliminate war, begun almost exclusively from a very strong presumption against any use of lethal force, argued that alternative means of conflict resolution now exist in almost all cases and so should be used, and increasingly narrowed down moral justification for war to the right of national self-defence (a development critiqued by some given this tends to appeal to natural law and be in tension with the Sermon on the Mount’s teaching).

The question now is why if the death penalty – an action against an individual who has been found guilty after due process – is inherently “an attack on the inviolability and dignity of the person” and so always “inadmissible” the same description and moral prohibition does not also apply to all intentional killing in war.  There are already signs that Pope Francis may indeed be following this logic through himself and the question now is whether, and if so on what basis, he might alter the Church’s historic support for just war thinking to a much more avowedly pacifist stance (concerns about this have been expressed by, for example, Andrew Latham and Nicholas G. Hahn III)

Finally, the Catechism concludes that, in relation to the death penalty, the Church “works with determination for its abolition worldwide”.  Some Catholics have objected to this development in the Church’s practical political stance.  By appealing to Scripture and tradition (notably lacking in Pope Francis’ comments) and stressing both the retributive nature of punishment (another very significant lacuna in the Catechism’s discussion) and the evidential argument in relation to deterrence, they have argued positively for the moral rightness of maintaining the death penalty.  This argument has most fully been set out recently by Joseph Beseette and Edward Feser (and in turn critiqued by various scholars including E. Christian Brugger) who have stated:

Among the many reasons why capital punishment ought to be preserved (all of which we set out at length in our forthcoming book), the most fundamental one is that for extremely heinous crimes, no lesser punishment could possibly respect this Catholic principle that a punishment ought to be proportional to the offense.

It might be thought that in order to combat such moral views and strengthen its work for abolition it is necessary for the church officially and formally to embrace Pope Francis’ new teaching or that his teaching is logically entailed by a determination to eliminate the death penalty.  But this conclusion – although it appears to be central to the rhetoric of the letter which seeks to show continuity with earlier statements - would be mistaken.  The nuanced stance set out in the Catechism previously (that where “non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person”) is sufficient moral justification and encouragement to work for the end of capital punishment.  The danger is that the limitations in the arguments supplied so far for the new, absolutist case for abolition mean that the Church’s stance may now be less “adequate and coherent” (the criteria named by Pope Francis in his October 2017 address).  It would be tragic if the intellectual weaknesses in the church’s defence of its new teaching were to lead to a lessening in the resolve to eliminate judicial executions and a strengthening of the hand of those pressing for their retention or even extension.

What does this change say about development in Catholic moral teaching?

Pope Francis’ previous pronouncements on capital punishment and other ethical matters (particularly regarding sexuality) have already led to serious questions being raised by a number of theologians as evident in the 13 page letter responding to his April 2016 exhortation Amoris Laetitia (“The Joy of Love”) from an international group of Catholic theologians, pastors, historians, and scholars (including Aidan Nicholls, Luke Gormally and others in the UK) or the open letter from Thomas Weinandy.

As initial conservative Catholic reactions show, this latest development is seriously going to increase their concerns.  There has now been a formal change in Catholic moral teaching as, with limited consultation (in contrast to the significant synodal work behind Amoris Laetitia), Pope Francis has now used his pontifical authority not only to say some new things in a pastoral exhortation but to rewrite the Catechism to state that “the Church teaches” something new which is summed up in words he himself spoke in an address in October 2017.

In most of the other areas of contention (both in relation to sexual ethics and the ending of life through abortion or euthanasia) the pressure for development in moral teaching is to follow the opposite trajectory to that now taken in relation to capital punishment.  Rather than actions which the Church has permitted (even if under very narrow constraints) now being judged “inadmissible” the desire is for actions the Church’s teaching has judged always “inadmissible” to be permitted in certain circumstances.  The argument elsewhere is not that we need to move towards a new exceptionless moral absolute but that the existing apparently exceptionless moral absolutes need to be moved away from and replaced by something more nuanced.  There are, therefore, important differences in the lines of argument that need to be explored to justify these other developments.  As the Roman Catholic Church and others, including Anglicans in the Church of England and wider Communion, wrestle with these issues of how together we discern ethical teaching (a focus of the next stage of the work of the current ARCIC conversations) this recent example in relation to capital punishment presents an interesting case-study and raises important questions about both the rigour of moral reasoning and the proper ecclesial processes to be followed when formally changing the church’s moral teaching.

A currently very limited set of resources on Christian approaches to the death penalty (which I hope to add to) can be found on my Theology and Ethics website

Appendix

The Pope’s original statement of an intention to rewrite the Catechism set out the case as follows:

To know God, as we are well aware, is not in the first place an abstract exercise of human reason, but an irrepressible desire present in the heart of every person.  This knowledge comes from love, for we have encountered the Son of God on our journey (cf. Lumen Fidei, 28).  Jesus of Nazareth walks at our side and introduces us, by his words and the signs he performs, to the great mystery of the Father’s love.  This knowledge is strengthened daily by faith’s certainty that we are loved and, for this reason, part of a meaningful plan.  Those who love long to know better the beloved, and therein to discover the hidden richness that appears each day as something completely new.

For this reason, our Catechism unfolds in the light of love, as an experience of knowledge, trust, and abandonment to the mystery. In explaining its structure, the Catechism of the Catholic Church borrows a phrase from the Roman Catechism and proposes it as the key to its reading and application: “The whole concern of doctrine and its teaching must be directed to the love that never ends.  Whether something is proposed for belief, for hope or for action, the love of our Lord must always be made accessible, so that anyone can see that all the works of perfect Christian virtue spring from love and have no other objective than to arrive at love” (Catechism of the Catholic Church, 25).

Along these same lines, I would like now to bring up a subject that ought to find in the Catechism of the Catholic Church a more adequate and coherent treatment in the light of these expressed aims.  I am speaking of the death penalty.  This issue cannot be reduced to a mere résumé of traditional teaching without taking into account not only the doctrine as it has developed in the teaching of recent Popes, but also the change in the awareness of the Christian people which rejects an attitude of complacency before a punishment deeply injurious of human dignity.  It must be clearly stated that the death penalty is an inhumane measure that, regardless of how it is carried out, abases human dignity.  It is per se contrary to the Gospel, because it entails the willful suppression of a human life that never ceases to be sacred in the eyes of its Creator and of which – ultimately – only God is the true judge and guarantor.  No man, “not even a murderer, loses his personal dignity” (Letter to the President of the International Commission against the Death Penalty, 20 March 2015), because God is a Father who always awaits the return of his children who, knowing that they have made mistakes, ask for forgiveness and begin a new life.  No one ought to be deprived not only of life, but also of the chance for a moral and existential redemption that in turn can benefit the community.

In past centuries, when means of defence were scarce and society had yet to develop and mature as it has, recourse to the death penalty appeared to be the logical consequence of the correct application of justice.  Sadly, even in the Papal States recourse was had to this extreme and inhumane remedy that ignored the primacy of mercy over justice. Let us take responsibility for the past and recognize that the imposition of the death penalty was dictated by a mentality more legalistic than Christian.  Concern for preserving power and material wealth led to an over-estimation of the value of the law and prevented a deeper understanding of the Gospel.  Nowadays, however, were we to remain neutral before the new demands of upholding personal dignity, we would be even more guilty.

Here we are not in any way contradicting past teaching, for the defence of the dignity of human life from the first moment of conception to natural death has been taught by the Church consistently and authoritatively.  Yet the harmonious development of doctrine demands that we cease to defend arguments that now appear clearly contrary to the new understanding of Christian truth.  Indeed, as Saint Vincent of Lérins pointed out, “Some may say: Shall there be no progress of religion in Christ’s Church?  Certainly; all possible progress.  For who is there, so envious of men, so full of hatred to God, who would seek to forbid it?” (Commonitorium, 23.1; PL 50). It is necessary, therefore, to reaffirm that no matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person.

Andrew Goddard

Andrew Goddard served on the Leadership Team of Fulcrum from its launch in 2003 until 2020. He currently teaches Christian ethics at Westminster Theological Centre and Ridley Hall, Cambridge and is Assistant Minister at St James the Less, Pimlico where his wife, Lis, is Vicar. He has previously taught at Wycliffe Hall, Oxford and Trinity College, Bristol and been an Adjunct Professor at Fuller Theological Seminary, Pasadena, California. He has served for a number of years on the Church of England Evangelical Council (CEEC) and was on the Co-Ordinating Group of the Living in Love and Faith project. He is author of a number of books, including Rowan Williams: His Legacy (Lion, 2013) and co-editor with Andrew Atherstone of Good Disagreeement? Grace and Truth in a Divided Church (Lion, 2015).