Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, August 2, 2018

Killing, Catholic Tradition, and the Law on Capital Punishment

A quick thought following today’s announcement from the Congregation for the Doctrine of the Faith that Pope Francis has approved a revision to Section 2267 of the Catechism of the Catholic Church.

Not much attention has been paid to the text of the letter from the CDF, which warrants a close reading. At Paragraphs 8 and 10 of Cardinal Ladaria’s letter, he states:

8. All of this shows that the new formulation of number 2267 of the Catechism expresses an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium. These teachings, in fact, can be explained in the light of the primary responsibility of the public authority to protect the common good in a social context in which the penal sanctions were understood differently, and had developed in an environment in which it was more difficult to guarantee that the criminal could not repeat his crime.


10. The new formulation of number 2267 of the Catechism of the Catholic Church desires to give energy to a movement towards a decisive commitment to favor a mentality that recognizes the dignity of every human life and, in respectful dialogue with civil authorities, to encourage the creation of conditions that allow for the elimination of the death penalty where it is still in effect.

Much of the reaction on Twitter and elsewhere seems to be over whether the Pope is “changing” Catholic teaching, breaking with a long tradition in favor of the permissibility of the death penalty, and opening the door to all manner of mischief under the guise of doctrinal development. I think a better way of framing the question and to have a reasonable debate in light of the Church’s moral tradition is to note that the permissibility of the death penalty was understood (by Aquinas, for example) as an *exception* to an otherwise absolute norm against intentional killing, based on an understanding of the dignity of all human life. Summa Theologiae, II-II.64.7 (“As it is unlawful to take a man's life, except for the public authority acting for the common good…it is not lawful for a man to intend killing a man in self-defense, except for such as have public authority, who while intending to kill a man in self-defense, refer this to the public good.”).

And so the question becomes whether Aquinas (or anyone else in the Catholic moral tradition right up to today) can carry off a justification for such an exception—are there ends (pertaining to the common good, public order, and safety) that justify the use of what would otherwise be a forbidden means (intentional killing)? On that question, the prudential weight of doctrinal authority (over the past several pontificates) has swung from in favor (as in Aquinas) to against such justifications, and that is (merely?) what the CDF’s letter and the revision to the Catechism reflects. In at least this respect, then, the revision to the Catechism reflects and deepens the moral principle that one may not do evil that good may come. See John Finnis, Aquinas: Moral, Political, and Legal Theory at p. 282 (“Aquinas therefore fails to reply convincingly to the argument that capital punishment, since it involves the intent to kill as a means, is “doing evil that good may come,” i.e. the pursuit of a good end (the restoration of the order of justice) by inherently immoral means.”).

A final brief note: it is a separate (but timely!) question how, say, a federal judge who is Catholic and accepts that the Catechism is a “sure and authentic reference” (John Paul II, Fidei Depositum IV) regarding Catholic doctrine should understand his or her responsibilities in death penalty cases. A reasonable answer to that question, it seems to me, is that the Constitution (absent an implausible reading of the Eighth Amendment to prohibit capital punishment) leaves the resolution of the death penalty’s permissibility to the political branches and that the judicial role requires an impartial application of what the positive law provides as to criminal punishment.


Moreland, Michael | Permalink