The death penalty debate and the Church’s magisterium

I regard the liceity of the death penalty as having been established with infallible certitude by the Church’s ordinary magisterium.

(Photo of Pope Francis: CNS photo/Paul Haring)

I follow the death penalty debate, of course, but I am more concerned about how that debate impacts some ecclesiologically important aspects of the Church’s teaching function.

As for the death penalty itself I find the arguments organized by Feser and Bessette in their treatise, By Man Shall His Blood Be Shed (Ignatius, 2017), upholding the liceity of the justly administered death penalty, convincing. Specifically I regard the liceity of the death penalty as having been established with infallible certitude by the Church’s ordinary magisterium and am undecided only as to whether that infallible certainty proclaims a “primary object” of infallibility (i.e., an assertion to be believed) or establishes a “secondary object” of infallibility (i.e., an assertion to be definitively held). I lean toward the latter.

Given my conclusions about the certitude of Church teaching in this area (with which conclusions some scholars I esteem disagree) I naturally share the grave concerns enunciated here about Pope Francis’ alteration of Catechism 2267 to reflect his view that the death penalty itself is “inadmissible” (whatever that means, although everyone knows what it means). For the record I also found John Paul II’s characterizations of the foundations for the death penalty to be historically and logically inadequate but, as he accepted the application of the death penalty in some cases, his unbalanced formulations of the issue did not occasion the serious magisterial issues that I think Francis’ novel formulation has engendered.

Which brings me to the canonical points I wish to outline.

Canon 752, especially its passage “a religious submission of the intellect and will must be given to a doctrine which the Supreme Pontiff or the college of bishops declares concerning faith or morals when they exercise the authentic magisterium, even if they do not intend to proclaim it by definitive act”, will be invoked by some as a canonical basis for demanding that the Christian faithful accept Francis’ alteration of the Catechism. How to think about this?

Granted that “by their very nature canonical laws are meant to be observed” (John Paul II, here) they are also to be assessed and applied in accord with canonical tradition (see esp. Canons 17-19). Before anyone concludes that Francis’ recent assertion demands “religious submission” under Canon 752 he or she should consider the following.

First, Canon 752 is very new in the canonical tradition. It was not present in the 1917 Code and the Legislator himself offers no foundations for it before the 1950s. In light of the intense debates over some other ‘first-time’ canonical provisions appearing in the 1983 Code—say, Canon 1095 n. 2 on due discretion for marriage or Canon 129 § 2 on lay cooperation in Church governance—debates suggesting that first attempts at legislation are often wanting, it would be temerarious to assume that a new legal formulation of personal, universal obligations in a theologically complex area, a formulation untested by time, as offered by Canon 752, represents exactly what the Church wants to say about a matter and precisely how she wants to say it. The public eruption over Francis’ novel death penalty text could itself illustrate the deficiencies of phrasing Canon 752 the way it is phrased.

Second—and this point takes longer to outline—although no one I know is arguing that Francis’ death penalty assertion itself was an “extraordinary” (i.e., an infallible) exercise of papal magisterium, many seem nevertheless to think that this single (or second, if we count Francis’ quoting of himself as qualifying as two assertions) papal assertion effectively demands the faithful’s immediate acceptance insofar as it appears to be a deliberate exercise of the papal “ordinary” magisterium.

But that’s where confusion sets in: while popes can, in a singleextraordinary act, assert something with infallible certitude sufficient to bind the faithful in belief or morals (Canon 749 § 1), no pope can, by a single ordinary act, assert something with anything like the equivalent force for Christian consciences.

The Church’s “extraordinary” magisterium, capable of binding the faithful in faith and doctrine, can proceed solely-papally or papally-episcopally; but her “ordinary” magisterium, also capable of binding the faithful in faith and doctrine, can proceed only papally-episcopally. As Francis’ move on the Catechism hardly qualifies as papal-episcopal, and there being no such thing as an ‘purely papal, ordinary, magisterium’ (the term itself seems an oxymoron, implying that some significant points of Church teaching have been taught onlyby popes!), then Francis’ views on the death penalty might (I stress, might, given the infallibility concerns above) contribute to the Church’s ordinary magisterium but they do not, and cannot, control it.

The ordinary magisterium, one must see, takes a long, long time, to develop; it requires repetition and consistency over many generations, this, not simply on the part of popes but also by the bishops around the world, and even incorporates, to some extent, the lived acceptance of teachings by Catholic pastors, academics, and rank-and-file faithful through time. Its power as a source of certitude in Church teaching has sadly been overshadowed in the last 150 years as a result of the lopsided pronouncements of Vatican I and (despite the better balance struck between popes and bishops in this regard found in Lumen gentium 25) the post-conciliar confusion created by so many doctrinally wayward or ineffective bishops. But the Church’s ordinary magisterium is not the domain of an individual pope’s preferences for a certain position; rather, its province is the protection and promotion of the deposit of Faith entrusted to the Church by Christ.

How to sum up the traditional understanding of this matter so far? Maybe thus: If it’s not extraordinary, it’s at most ordinary, but if it’s ordinary, it requires popes and bishops around the world and over a long, long time, and not just a pope in a claim or two.

In light of the foregoing, then, it is easier to see why the present formulation of Canon 752 seems wanting: its language appears (I say appears, because scholars are divided over the meaning and implications of Canon 752) to regard as possible the obligation of “religious assent” being owed to a single, undoubtedly non-infallible, purely papal, no-matter-how-unprecedented, assertion regarding faith and morals. I, for one, frankly doubt that is what the Church meant to say although I grant that seems to be how her new law presently reads.

All of which is why the questions surrounding the death penalty impact not only that very important social and civil issue but also the Church’s understanding and operation of her own magisterium.

Other Essays in the Symposium: 

“Catechism changes demand the impossible” by Christopher R. Altieri, who says the new text on capital punishment seems to require Catholics to substitute this Pope’s judgment on this subject for their own.

“Some questions for defenders of capital punishment” by Robert G. Kennedy, who argues that the historical record is less consistent than many suppose and it does not, in fact, support the claim that the Church has committed itself irreformably to the right of the state to kill.”

“Development, not deviation: Evaluating Francis’ modification on the death penalty” by Thomas J. Nash, who writes, “We can reaffirm that state executions are not intrinsically evil, even while we join Pope Francis in working toward the abolition of their social application.”

“On human dignity and the death penalty” by Fr. James V. Schall, S.J. who observes: “Whether human dignity is upheld if we allow no executions remains an open question. As Plato intimated, a case for the execution of certain criminals can be made precisely in the name of their human dignity.”

“Capital punishment: Intrinsically evil or morally permissible?” by Joseph G. Trabbic, who argues that what we appear to have on our hands is a case of interpretive undecidability.

About Edward N. Peters 112 Articles
Edward N. Peters, JD, JCD has doctoral degrees in canon and common law. Since 2005 he has held the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit. His personal blog on canon law issues in the news may be accessed at the "In the Light of the Law" site.

13 Comments

  1. Even though this is apparently a part of a new series dealing with the recent change, as far as I’m concerned nothing else really needs to be said from a Latin perspective. But undoubtedly there will be some Latin attempting to combine liberalism with ultramontanism.

  2. My colleage, Dr. Ed Peters, provides some good insights, but I can see that he’s struggling with this issue. I would advise those who have difficulty with Pope Francis’s teaching on the death penalty to follow the guidance of the CDF given in Donum Veritatis, 27-31. Some of Dr. Peters’ comments about the ordinary papal magisterium need clarification because they could be interpreted as challenging the universal ordinary teaching authority of the Roman Pontiff, which is affirmed by three ecumenical councils: Florence (D-H, 1307); Vatican I (D-H, 3064), and Vatican II (Lumen Gentium, 22 and 25). It’s also not clear that Pope Francis’s position on the death penalty is devoid of episcopal support. The Synod of Bishops in 2015 endorsed proposition 64, which states that the Church “firmly rejects the death penalty.” In Amoris Laetitia, 83, Pope Francis simply confirms this position of the Synod bishops.

    I give Dr. Peters credit for trying to show some of the canonical implications of the revision of CCC 2267 on the death penalty. From an ecclesiological perspective, however, I think some of his statements need clarification.

    • One statement by a bunch of bishops in 2015 is not a good example of the ordinary magisterium at work.

      As for the universal ordinary magisterium of the pope, Dr. Peters can respond about that point. I will merely say that it is hardly accepted by those who are non-Latin.

  3. Dr Peters raises interesting questions. We can, as others have noted, raise the question of whether today’s bishops represent a moral unanimity in opposition to capital punishment. If so, we can ask whether their unanimity extends only to agreement as to the imprudence of capital punishment in today’s world, and how firmly they all think this position regarding imprudence should be held by the faithful. Or whether they unanimously regard capital punishment as “inadmissible” *in principle*, given our “developed” understanding of the human person.

    We can also think about how such episcopal unanimity, if it exists, should be understood in relation to unanimity of bishops in the past, if it existed, on the subject of the moral legitimacy of capital punishment. Have we reasonable grounds for thinking that bishops 100 years ago agreed that capital punishment was morally justified, since this was the generally promulgated Catholic teaching at the time? Did the bishops then regard such a position as a judgment of prudence that capital punishment could justly be applied then and there, and that the faithful should agree with them in the matter? Was it a prudential judgment which they thought the faithful should generally agree with? Or disagree with?

    What of the acceptance of so many of the world’s Catholic bishops of the so-called Catechism of the Council of Trent, which taught the moral legitimacy and even general need for capital punishment as a matter of *obedience* to the Fifth Commandment. Did these bishops regard that teaching as something the faithful were *obliged* to accept as true, whatever the particular assessments that they or their bishops might make regarding the applicability of that teaching in particular cases? Because capital punishment is described by that Catechism as “an act of paramount obedience to this Commandment [the 5th Commandment]”, ought we to regard acceptance of the teaching of that Catechism by the bishops on the point as involving something the faithful should hold “definitively”? That is, not merely as something the bishops present as true and sound but as something the faithful were bound to affirm as part of a Catholic understanding of the Fifth Commandment (whether as something to be believed or as something to be definitively held)?

    The distance between where the bishops seemed to have been 400 and 300 and 100 years or even 60 years ago and where they seem to be today, is something not easily intellectually traversed, even by the invocation of the all-purpose word when it comes to change: “development”.

    If a real, as opposed to a mere nominal, development is at work, one can hope for a clearer exposition of that change than found either in the revision of Catechism paragraph 2267 itself or in the CDF letter explaining it. To some extent, this is the work of theologians. But if the Church’s pastors expect thoughtful Catholics to accept the “development” as an authentic development, I respectfully submit that for many people it will take more than theologians’ essays or the repeated invocation of “development” or appeals to the fact that the Pope is the Vicar of Christ. Otherwise, many of the criticisms wrongly aimed at reaffirmations of traditional Catholic teachings (e.g., the evil of contraception, masculine nature of the ministerial priesthood) will be taken as rightly aimed at revisions of traditional Catholic teachings. Many people understandably want clarification on the question of whether capital punishment is ever morally “admissible” or whether its supposed attack on the inviolability and dignity of the person and its contradiction of the Gospel mean it is, in itself, per se wrong. And if it is the latter, how to make sense of millennia of widespread and vigorously affirmed teaching to the contrary, teaching seemingly unanimously affirmed by the Catholic bishops for long periods of time and taught as at least in some way binding on the faithful.

    And unwillingness by leaders to discuss and explain, even to stand corrected on, this matter, could be disastrous. Let us pray and study and give maximum scope to charity.

    • I don’t want to speak for Mr Edwards but in response to Mr. Fastiggi I would suggest that what Mr. Edwards is really struggling with is how to keep the teaching authority of the Magisterium intact when Pope Francis seems to be willing to essentially disregard it concerning capital punishment, let alone other troubling aspects such as communion for the divorced and remarried.

  4. On this matter, the Pope has brought us nearer to the nonviolent radical witness of Jesus Christ to his executioners, instructing all executioners, all Christians…it is as simple, troubling and clarifying as that.

  5. I appreciate as always Robert Fastiggi’s input but would observe that what exactly is meant by the terms and concepts he refers to, and how they are, or are not, reflected in the recent attempt to canonize those matters, is exactly what’s at issue here. And, again as always, Mark Brumley puts matters well.

  6. Sandro Magister and others questioned the strange use of the word “inadmissible” by Pope Francis. Therein is a clue. If we address the Pope’s remark that the death penalty is inadmissible in context of legal definition we have an apparent solution. Example court evidence that a judge declares as inadmissible is not a judgment on whether the evidence is true. The word inadmissible implies the option that there exists instances when the subject matter is admissible. We can’t deny the Pope’s cleverness [genius?] in apparently forbidding the death penalty while similarly not forbidding it.

    • For many years I was a litigation lawyer who used ambiguous terms in drafts of settlement agreements to forge a compromised agreement with the other side. If there was no opposition to my ambiguities, I would solidify the language in favor of my client. If there was opposition, I would try to develop compromise language needed for an agreement. The objective was to find a center to which the parties could agree. The use of ambiguity for compromise on matters of faith and morals has no place in the domaine of papal and episcopal leadership in a Church that is “one, holy, catholic and apostolic”. Paul confronted Peter on the need for clarity concerning the requirements for gentile admission to the faith and Peter corrected himself. The meaning of the term “admissible” in this context and the application of extraordinary and ordinary magisterium principles in this matter are baffling, uncertain and ambiguous to this Catholic layperson.
      Briefly, I oppose the death penalty in most developed countries because it is not necessary to defend the society from the properly convicted person, but in some developing countries capital punishment is necessary to protect the society from its destruction.

  7. Non-infallible teachings of the ordinary papal magisterium are subject to a limited possibility of error and reform. The faithful might disagree with the Pope on the death penalty, as then-Cardinal Ratzinger said in “Worthiness to Receive Holy Communion” (found on the priests for life website). But to claim that the Pope can’t teach at all under the ordinary non-infallible magisterium, unless the Bishops agree, contradicts the infallible teaching of the First Vatican Council. It also contradicts common sense, since the Pope can teach infallibly by his own authority, he must have the lesser authority to teach non-infallibly by his own authority. Christ gave Peter the authority to bind and loose, the keys to the kingdom of heaven, not only when acting infallibly.

3 Trackbacks / Pingbacks

  1. Catechism changes demand the impossible – Catholic World Report
  2. Some questions for defenders of capital punishment – Catholic World Report
  3. Development, not deviation: Evaluating Francis’ modification on the death penalty – Catholic World Report

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