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 Is
the Church Against Both Abortion and the Death Penalty?
Luiz Sérgio Solimeo
It is not a rare thing for Catholic prelates
to assert definitively that the Church opposes capital punishment.
Some even liken the death of a defenseless aborted baby
to that of a criminal duly judged by a competent court and
condemned for a grave violation of the moral or juridical
order. Such churchmen conclude that Catholics are obliged
to reject not only abortion but the death penalty as well.1
Cardinal Ratzinger’s
Letter to the
American Bishops
Such conclusions are misleading.
To the contrary, although it is very restrictive
in the application of the death penalty today, the Catechism
of the Catholic Church recognizes that “the traditional
teaching of the Church does not exclude recourse to the
death penalty.”2
In a letter to the American Bishops on
denying Holy Communion to pro-abortion Catholic politicians,
the then-Cardinal Ratzinger, now Pope Benedict XVI, made
it clear that the death penalty is legitimate and cannot
be placed on the same footing as abortion or euthanasia.
He said:
“[I]f 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. ... [I]t 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”3
(emphasis ours).
The Teachings
of Pope Pius XII
These words echo those of Pope Pius XII (1939-1958) in his
speech of March 13, 1943 to the parish priests of Rome:
“God ... the fountain of
justice reserved to himself the right over life and death.
… Human life is untouchable except for legitimate
individual self-defense, a just war carried out
with just methods, and the death penalty meted out
by public authority for extremely grave and very
specific and proven crimes” 4
(emphasis ours).
In another speech, the same Holy Father
clarifies: “Even when executing a condemned
individual, the State does not have a right over the person’s
life. The public authority is empowered to deprive
a condemned man of his life to expiate his fault
since by his own crime he divested himself from his right
to life.” 5
Both Old and
New Testament
Accept Death Penalty
In this respect, Avery Cardinal Dulles points out that both
the Old and New Testaments support the use of the death
penalty. He writes:
In the Old Testament the Mosaic Law
specifies no less than thirty–six capital offenses
calling for execution .... The death penalty was considered
especially fitting as a punishment for murder since in
his covenant with Noah God had laid down the principle,
“Whoever sheds the blood of man, by man shall his
blood be shed, for God made man in His own image”
(Genesis 9:6). ...
In the New Testament
the right of the State to put criminals to death seems
to be taken for granted. Jesus himself refrains from using
violence. ... At no point, however, does Jesus deny that
the State has authority to exact capital punishment. In
his debates with the Pharisees, Jesus cites with approval
the apparently harsh commandment, “He who speaks
evil of father or mother, let him surely die” (Matthew
15:4; Mark 7:10, referring to Exodus 2l:17; cf. Leviticus
20:9). When Pilate calls attention to his authority to
crucify him, Jesus points out that Pilate’s power
comes to him from above—that is to say, from God
(John 19:11). Jesus commends the good thief on the cross
next to him, who has admitted that he and his fellow thief
are receiving the due reward of their deeds (Luke 23:41).
6
The Constant
Magisterium of the Church
The principle of the legitimacy of the death penalty
imposed by competent authority after due process stems from
Revelation and natural law and has always been consistently
taught by the Magisterium of the Church and her theologians.
The same Cardinal Dulles affirms:
“The Catholic magisterium does not,
and never has, advocated unqualified abolition of the death
penalty. I know of no official statement from popes or bishops,
whether in the past or in the present, that denies the right
of the State to execute offenders at least in certain extreme
cases.” 7
The profession of faith that Pope Innocent
III (1198–1216) demanded from Waldensian heretics
who denied the legitimacy of the death penalty, for example,
contains this statement: “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.”
8
Distinction
between the Law and its Application
“The legitimacy of the
death penalty is a matter of Law; its application is factual
matter that depends very much on concrete circumstances
of time and place, a people’s civic education, the
diversity of times, etc.” 9 However,
even when one opposes capital punishment because of circumstantial
reasons, one must not deny its legitimacy in principle or
condition it to circumstances so narrowly as to impede or
prevent it from being applied in practice. For in this case,
real life would no longer be guided by principles and one
would fall into the error of pragmatism.
In this article we limit ourselves to the
realm of principle, since what we have in mind is to emphasize
the philosophical and theological implications that result
from an erroneous conception of penal justice.
Confusion
about Punitive Justice…
Indeed, most objections of principle to the death
penalty are due to a poor understanding of punitive justice
and the purpose of punishment. Such misunderstandings come
from the idea that the end of punishment is seen only as
a means to protect society or correct the malefactor.
Yet, though punitive justice does have
this twofold finality, it is not limited to these ends.
Its most profound reason for being is the need for the guilty
one to expiate for the crime committed and thus restore
the juridical order undermined by his crime. 10
... Making
it Difficult to Understand Divine Justice
The expiatory goal of punishment is all the more
important since its absence makes it difficult to understand
divine justice and the dogma of Hell. For, since in the
next life the need for protection and the possibility of
conversion are nonexistent, eternal punishment can be understood
only as expiation for the evil committed and reparation
of transgressed divine justice, the triumph of good over
evil.
Crime Violates
the Juridical Order
Let Pope Pius XII himself explain these notions. Below are
excerpts from his memorable speech at the Sixth Congress
of International Penal Law, on October 3, 1953.11
It is one of the most complete and systematic explanations
by a pope on this matter (subtitles and bold emphasis are
ours for clarity).
“Penal law is a reaction of the
juridical order against the delinquent; it presupposes
that the delinquent is the cause of the violation of the
juridical order....
At the moment of the crime, the delinquent
has before his eyes the ban imposed by juridical order:
he is conscious of it and of the obligation it imposes;
but, nevertheless, he decides against his conscience,
and to carry out his decision commits the external crime.
That is the outline of a culpable violation of the law.
Modern Penal
Theories Incomplete
Most modern theories of penal law explain
punishment and justify it in the last resort as a protective
measure, that is, a defense of the community against crimes
being attempted; and, at the same time, as an effort to
lead the culprit back to observance of the law. In these
theories, punishment may indeed include sanctions in the
form of a reduction of certain advantages guaranteed by
the law, in order to teach the culprit to live honestly;
but they fail to consider expiation of the crime
committed, which itself is a sanction on the violation
of the law as the most important function of the punishment....
Yet, from another point of view, and indeed
a higher one, one may ask if the modern conception is fully
adequate to explain punishment. The protection of the community
against crimes and criminals must be ensured, but the final
purpose of punishment must be sought on a higher plane.
The Essence of Punishment: to Proclaim
the Supremacy of Good over Evil
The essence
of the culpable act is the freely-chosen opposition to
a law recognized as binding; it is the rupture and deliberate
violation of just order. Once done, it is impossible to
recall. Nevertheless, insofar as it is possible to make
satisfaction for the order violated, that should be done.
For the fundamental demand of justice, whose role in morality
is to maintain the existing equilibrium, when it is just,
and to restore the balance when upset. It demands that
by punishment the person responsible be forcibly brought
to order; and the fulfillment of this demand proclaims
the absolute supremacy of good over evil; right triumphs
sovereignly over wrong.
Now we take the last step; in the metaphysical
order the punishment is a consequence of our dependence
on the supreme Will, a dependence which is written indelibly
on our created nature. If it be ever necessary to repress
the revolt of a free being and re-establish the broken
order, it is surely here when the supreme Judge
and His justice demand it. The victim of an injustice
may freely renounce his claim to reparation, but as far
as justice is concerned, such claim is always assured
to him.
Need for Expiation, Protection of
the Juridical Order
The deeper understanding of
punishment gives no less importance to the function of
protection, stressed today, but it goes more to the heart
of the matter. For it is concerned, not immediately
with protecting the good ensured by the law, but the very
law itself. There is nothing more necessary for the national
or international community than respect for the
majesty of the law, and the salutary thought that the
law is also sacred and protected, so that whoever breaks
it is punishable and will be punished.
These reflections help to a better
appreciation of another age, which some regard as outmoded,
which distinguished between medicinal punishment –
poena medicinalis – and vindictive punishment
– poena vindicativae. In vindictive punishment
the function of expiation is to the fore: the
function of protection is comprised in both types of punishment.
Without Expiation, There is No Understanding
of Divine Justice
Finally, it is the expiatory function
which gives the key to the last Judgment of the Creator
Himself, Who "renders to everyone according to his
works" (Matt. 16:27; Rom. 2:6). The function of protection
disappears completely in the after-life. The almighty
and all-knowing Creator can always prevent the repetition
of a crime by the interior moral conversion of the delinquent;
but the Supreme Judge, in His last judgment, applies uniquely
the principle of retribution. This, then must be of great
importance.
Is The Death
Penalty Contrary to Human Dignity?
Some argue that the death penalty is contrary to
human dignity and that a criminal maintains his dignity
in spite of his crimes, however bad they may have been.12
This argument, however, establishes confusion between ontological
order (human nature’s perfection) and moral
order (conformity of human actions with right reason
and divine law). While man never loses the ontological
dignity of his nature, he does lose his moral
dignity when he intentionally practices evil.
Furthermore, the argument of human dignity
is not germane to the issue, because the object of justice
is not human dignity, whether ontological
or moral, but rather the voluntary acts of man
in his relationships with others.13
No one is condemned to a just punishment because of dignity
or the lack thereof, but rather for concrete actions practiced
against the common good.
Avoiding Doctrinal
Ambiguity
Whatever position one takes regarding the application of
the death penalty in this or that place or historical circumstances,
one must always be careful to prevent ambiguity from shrouding
the clear principles of natural law and Revelation on this
matter.
Abandoning the principle of the legitimacy
of the death penalty and its conformity with natural law
and Revelation paves the way to accepting principles condemned
by the same natural and divine law: the use of condoms,
justification of homosexual practices, euthanasia, and so
on.
In this regard, Cardinal Dulles warns:
Arguments from the progress of ethical
consciousness have been used to promote a number of alleged
human rights that the Catholic Church consistently rejects
in the name of Scripture and tradition. The magisterium
appeals to these authorities as grounds for repudiating
divorce, abortion, homosexual relations, and the ordination
of women to the priesthood. If the Church feels herself
bound by Scripture and tradition in these other areas,
it seems inconsistent for Catholics to proclaim a ‘moral
revolution’ on the issue of capital punishment.14
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