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.

Tuesday, December 18, 2018

The death penalty, the development of Catholic doctrine, and judging doctrines and persons

The growing number of those who claim that Pope Francis is making a mess of things can hardly be accused of disrespecting the Roman Pontiff.  After all, it was Francis himself who in July 2013 famously said, "I want a mess."  I count myself among those who prudently suspect most of this Pope's "off the cuff" remarks of being more planned than spontaneous, much like the reliable presence of professional photographers when from time to time Cardinal Bergoglio took public transportation in Buenos Aires. Far from disrespecting the Pope, those who positively credit Francis with making a mess are guilty of sycophancy of an odd sort; messes are usually to be avoided, but this Pope's promoters are programatically pleased to attach themselves to his mess making.   

Disrespect and sycophancy aren't the only available postures, however.  A middle way would be respectfully to call upon Pope Francis to speak clearly and authoritatively on the matters of faith and morals that pertain to the exercise of the Petrine munus and otherwise to speak with the modesty befitting a monarch.  Previous Popes almost always knew how both things were to be done.  And the evidence (as collected by Henry Sire, for example) is that this Pope, author of that undefined novelty "synodality," does indeed see himself as a monarch, but some commentators have reasonably asked whether he isn't one masquerading, less and less successfully, as a populist in the Peronist model.  I remain of the traditional Catholic view that the Roman Pontiff is in fact constituted, by virtue of his office, as a monarch in his potestas, the current "mess" notwithstanding.

Which brings me to my present point, concerning Pope Francis's prepared statement and off-the-cuff remarks to the "International Commission against the Death Penalty" on December 17th.  The mess of confusion in what the Pope wrote and said does not allow us to pretend any longer that this Pope is not saying -- as clearly as he is likely to say it -- that he himself is in fact teaching a development of Catholic doctrine concerning the civil authority's right to execute persons.  But exactly what doctrine Francis has in mind, however, remains to be specified, and in specifiying it we should of course apply a hermeneutic of charity. 

Pope Francis himself helps by making unmistakably clear that sometimes the civil authority will have not only the right but also the duty to execute persons for the valid purpose of defending persons for whom the state is responsible.  This reaffirmation of the Church's teaching on self-defense is to be welcomed, even if it could have been accomplished in far more precise terms and concepts than the available texts and transcripts indicate.  But what Pope Francis seems now to have ruled out as always "inadmissible" is the state's executing a person for the purpose of applying a just (and therefore proportionate) penalty or punishment to a person duly convicted of a crime. 

What Pope Francis seems to be teaching is that, even when applied for the generally valid purpose of deterrence and to a duly convicted person to whom a proportionate penalty is due, the death penalty is always and everywhere immoral because it violates human dignity.  How executing in valid (and therefore proportionate) defense of persons is not a violation of human dignity, whereas executing a duly convicted wrongdoer as a punishment always and everywhere is a violation of human dignity, is an apparent contradiction that is not explained away.  Human dignity per se cannot be a good and sufficient reason not to kill a person if, as the Pope rather clearly states, self-defense, even including by killing a person, is sometimes both a right and a duty.

Setting this profound difficulty aside for the moment, I would like to conclude here with a different but deeply related line of inquiry, one that concerns Pope Francis's invitation, on December 17th in the remarks I have just been discussing, regarding how to judge (sic) those who in the past taught that the death penalty was in some cases morally acceptable:  

In past centuries, when the instruments available to us today for the protection of society were lacking and the present level of development of human rights had not yet been reached, recourse to the death penalty was sometimes presented as a logical and just consequence. Even in the Pontifical State this inhuman form of punishment has been resorted to, ignoring the primacy of mercy over justice.

This is why the new wording of the Catechism implies also assuming our responsibility for the past and recognizing that the acceptance of this form of punishment was the consequence of a contemporary mentality, more legalistic than Christian, which sacralized the value of laws lacking in humanity and mercy. The Church could not remain in a neutral position in the face of today‚Äôs demands to reaffirm personal dignity.

What are we to say about those persons, including the Popes, who accepted -- in the sense of authoritatively teaching the in-principle moral uprightness of -- the death penalty as, in Pope Francis's words, "the consequence of a contemporary mentality" (italics added)?  The then-contemporary morality was in fact, we are told by Pope Francis, immoral.  But how are we to think about the possible culpability of the Popes and everyone else (from the Fathers of the Church through and including Pope Benedict XVI) in teaching the in-principle morality of the death penalty as punishment?  It will not do to exonerate them, if indeed they need exonerating for holding and teaching allegedly objectively incorrect moral views, to say that their holding and teaching them was a "consequence" of the (defective) culture in which they lived.  It is the very possibility of human free choice, obviously, that makes moral assessment possible, and it would add the proverbial insult to injury to claim that our forebears weren't choosers but, in the relevant respect, "consequences."  What, after all, allowed Pope Francis the putative insight that the death penalty long approved by his Predecessors is, was, always has been, and always and everywhere will be in fact morally evil?

One set of answers to the complex questions about how to judge in the case of legitimate development of doctrine is provided by Judge John T. Noonan, Jr. (1926-2017).  Here is the crux of it:  "St Augustine and St. Thomas Aquinas were defenders of the lawfulness of human slavery and of the rightness of religious persecution.  Are we in a position to judge them as teachers of unjust doctrine?  It is evident, I believe, that if each generation is free to measure its predecessors morally, using the criteria now accepted, no one will escape condemnation.  We must be judged by the moral criteria we know.  Judgment of the status of past moral doctrine presents a different question." (Noonan, A Church that Can and Cannot Change, 200-01). 

Noonan thus suggests that persons should be judged by the moral criteria they knew, perhaps even the then-familiar "mentality," whereas doctrines must be judged, as Noonan elaborates in passages I have not quoted above, according to their conformity to the person of Christ.  But is it an exhaustive dilemma between persons-as-implementers-of-then-contemporary moral-criteria and doctrines-as-subjects-of-evaluation-according-to-transcendent-criteria?  I think not.  Those who press for valid development of doctrine are themselves engaging in morally praiseworthy, one might even say prophetic, witness.  But prophecy is risky business.  False prophets exponentially outnumber true prophets. 

What then of those who press for invalid "development" of doctrine?  The Catholic understanding is that valid development of doctrine occurs when what was implicit in the depositum Fidei is authoritatively made explicit.  In the face of a purported development that amounts in fact to no more than a comparatively attractive personal opinion, the judgment that cannot be blinked is that the purported doctrine, however attractive and no matter the sincerity of its proponent, is in fact false qua development of doctrine.  

The other judgment, however, concerns the culpability of the falsifier.  Here I think of something else Noonan wrote in the same vein, the valid development of doctrine:  "The Modernists took the idea of development and ran away with it.  Doctrine became the projection of human needs, changing in response to those needs. Control of doctrine by the objective content of revelation disappeared. . . . The Modernist position that human needs will shape doctrine carries the cost of eliminating any objective content; it is, as Pius X put it, 'the synthesis of all the heresies.'"  (Noonan, "Development in Moral Doctrine," 54 Theological Studies 662, 671-72 (1993) (citations, including to Pascendi (1907), omitted).  Noonan's touchstone, divine revelation in Scripture, of course establishes the moral rectitude of capital punishment in some circumstances.  See Edward Feser's work here

Even in December we can join Pope Francis in his prayer intention for this past October: "St. Michael the Archangel, defend us in battle."  The Modernists took the idea of development and ran away with it.


Brennan, Patrick | Permalink