In an October 11 speech to the Pontifical Council for the Promotion of the New Evangelization, Pope Francis condemned the death penalty, not only in its concrete application but also as a correct doctrine according to the Gospel. He said that no man, “not even a murderer, loses his personal dignity.”[1]
For him, the question of the death penalty cannot be reduced to “a mere résumé of traditional teaching.” Rather, the doctrine about the death penalty has been “developed in the teaching of recent Popes.” Also, he thinks public opinion has changed its perception of the death penalty since people now understand that it is “deeply injurious of human dignity.”
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Thus, the Pontiff says that the death penalty “is per se contrary to the Gospel.”
How to explain, then, that earlier Popes, Doctors of the Church, and the sentiment of the Christian people consistently upheld the theory of the legitimacy of the death penalty and its application throughout the ages?
He goes on to state, “Sadly, even in the Papal States recourse was had to this extreme and inhumane remedy that ignored the primacy of mercy over justice.” For him the cause of past Popes errors defending the legitimacy of death penalty “was dictated by a mentality more legalistic than Christian.” They were more concerned “for preserving power and material wealth” and this led to “overestimating the value of the law.” That mentality, Pope Francis believes “prevented a deeper understanding of the Gospel.”
This charge is extremely serious. That is to say that or two thousand years, the Magisterium of the Church failed to understand the depth of the Gospel. It implicitly denies the infallibility of the constant Ordinary Magisterium of the Popes.
Pope Francis ended his considerations affirming that “[d]octrine cannot be preserved without allowing it to develop, nor can it be tied to an interpretation that is rigid and immutable without demeaning the working of the Holy Spirit.”
For him, “Tradition is a living reality and only a partial vision regards the ‘deposit of faith’ as something static.”
Reflection of Modernist Heresy
One cannot fail to see here the reflection of the Modernist doctrine condemned by St. Pius X. Indeed, on paragraph 28 of the Encyclical Pascendi, the Holy Pope explains that,
“Thus then, Venerable Brethren, for the Modernists, both as authors and propagandists, there is to be nothing stable, nothing immutable in the Church.” And he quotes the Syllabus of Pius IX that condemned the following statement: “Divine revelation is imperfect, and therefore subject to continual and indefinite progress, corresponding with the progress of human reason.”
The Holy Pope quotes also the Vatican I Council which stated that “the sense, too, of the sacred dogmas is that which our Holy Mother the Church has once declared, nor is this sense ever to be abandoned on plea or pretext of a more profound comprehension of the truth.”[2]
Pope Pius XII: legitimacy of death penalty
According to the traditional doctrine of the Church Pope Pius XII (1939-1958) in his speech of March 13, 1943 to the parish priests of Rome defended the doctrine of death penalty.
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“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.”[3]
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.”[4]
Both Old and New Testament Accept Death Penalty
In this respect, the late Avery Cardinal Dulles pointed out that both the Old and New Testaments support the use of the death penalty. He wrote:
“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 21:17; 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).[5]
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 affirmed:
“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.”[6]
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.”[7]
Distinction between the Law and its Application
Fr. Marcelino Zalba S.J. makes this necessary distinction:
“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.”[8]
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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.
As we read in Victor Cathrein, S.J.’s Philosophia Moralis, “To correct the delinquent is the secondary end of public punishments; the primary end is the common good of society.”[9]
… 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.[10] 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?
To argue that the death penalty is contrary to human dignity 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 as St. Thomas Aquinas teaches:
“[T]he proper matter of justice consists of those things that belong to our intercourse with other men. … Hence the act of justice in relation to its proper matter and object is indicated in the words, ‘Rendering to each one his right’.”[11]
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.
Cardinal Dulles warned:
“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.”[12]
[1]Address of His Holiness Pope Francis to Participants in the Meeting Promoted by the Pontifical Council for Promoting the New Evangelization
October 11, 2017, http://w2.vatican.va/content/francesco/en/speeches/2017/october/documents/papa-francesco_20171011_convegno-nuova-evangelizzazione.html (Retrieved 10/15/17) All emphasis our own.
[2]PASCENDI DOMINICI GREGIS ENCYCLICAL OF POPE PIUS X ON THE DOCTRINES OF THE MODERNISTS, http://w2.vatican.va/content/pius-x/en/encyclicals/documents/hf_p-x_enc_19070908_pascendi-dominici-gregis.html (Retrieved 10/15/17).
[3]Pius XII, “Sulla Osservanza de iCommandamenti di Dio — Ai Parroci ed Ai Quaresimalisti Di Roma,” Mar. 13, 1943, in Discorsi e Radiomessaggi di Sua Santità Pio XII, Tipografia PoliglottaVaticana, vol. V, p. 197.
[4] “I limite morali de imeto dimedici di indagine e di cura — Ai participanti del Congresso Internazionale in Istopatologia del sistemanervoso,” in Discorsi e Radiomessaggi di Sua Santità Pio XII, Tipografia PoliglottaVaticana, vol. XV, p. 328.
[5] Avery Cardinal Dulles, “Catholicism and Capital Punishment,” First Things, Apr. 2001, pp. 30-35). Cf. MarcellinoZalba, S.I., Theologiae Moralis Summa, (Madrid: BAC, 1957) vol. II, nn. 173-176. Aertnys-Damen C.SS.R, Theologia Moralis, (Turin: Marietti, 1950, I, n. 569); Antonio Peinador Navarro, C.M.F., Tratado de Moral Professional (Madrid: BAC, 1962) n. 169.
[6] Dulles, art. cit.
[7]Denzinger n. 425.
[8]Zalba, II, n. 173.
[9]Barcelona: Editorial Herder, 1945, n. 735, obj. 3, Rep.
[10]Discorsi e Radiomessagi di Sua Santità Pio XII, Tipografia PoliglottaVaticana, vol. XV, pp. 335-359; Vincent A. Yzermans, Ed., The Major Addresses of Pope Pius XII, (St. Paul: The North Central Publishing Company, 1961) pp. 224-257. We use Yzermans’ translations.
[11] St. Thomas Aquinas, Summa Theologica, II-II, q. 58, a. 1
[12] Dulles, art. cit.