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Sawing off the branch on which he sits: Experts question Francis attack on popes over death penalty

Diane Montagna Diane Montagna Follow Diane

ROME, December 17, 2018 (LifeSiteNews) — Pope Francis has incited further controversy in a recent address expounding on his reasons for changing the Catechism of the Catholic Church on the death penalty.

As LifeSite reported earlier, Pope Francis told a delegation from the International Commission against the Death Penalty in a Dec. 17 address that popes “in past centuries” ignored “the primacy of mercy over justice” in using the death penalty, which he called an “inhuman form of punishment” that is now “always inadmissible.” 

Insisting that the change to n. 2267 of the Catechism is not a “contradiction with the teaching of the past,” but a “harmonious development” of doctrine, Pope Francis reiterated that the Church now teaches, “in the light of the Gospel, that the death penalty is always inadmissible because it counters the inviolability and the dignity of the person.”

“In the same way,” he said, “the Magisterium of the Church understands that life imprisonment, which removes the possibility of moral and existential redemption, for the benefit of the condemned and for the community, is a form of the death penalty in disguise.”

The Pope has already faced criticism for seeking to change infallible Catholic teaching on the permissibility of execution in principle. This latest papal intervention will make it even more difficult for those who argue that there is no contradiction between Pope Francis’s teaching and the doctrine of his 266 predecessors. 

Already, one prominent philosopher and writer on capital punishment is challenging the basis of the Pope’s new teaching, while a Dominican theologian and a Catholic historian have both expressed concerns at the coherence and defensibility of the pontiff’s novel claims.

A prominent philosopher weighs in

Renowned Catholic philosopher Edward Feser, Associate Professor of Philosophy at Pasadena City College in Pasadena, California, is one of the foremost contemporary writers in the Thomistic tradition. He is the author of such works as The Last SuperstitionScholastic MetaphysicsFive Proofs of the Existence of GodBy Man Shall His Blood Be Shed (with Joseph Bessette) and the forthcoming (and much anticipated) Aristotle’s Revenge.

By Man Shall His Blood Be Shed, is a study and defense of the perennial Catholic teaching on the death penalty as legitimate in principle and often advisable in practice even in contemporary social conditions.

In comments to LifeSite regarding Pope Francis’s Dec. 17 address to the International Commission against the Death Penalty, Feser said:

Once again the Pope both appears to condemn capital punishment as intrinsically wrong and claims that his remarks are consistent with past teaching. He tries to justify the claim that there is no inconsistency by saying that the Church has always affirmed the dignity of life. But this is analogous to denying the doctrine that there are three divine Persons and then claiming that this is consistent with past teaching, on the grounds that the Church has always affirmed that there is only one God.  In fact, the doctrine of the Trinity requires us to say both that there is only one God and that there are three Persons in God.  Similarly, consistency with scripture and previous papal teaching requires us to say both that life has dignity but also that an offender can in principle lose the right to his life.  To fail to affirm both of these things is precisely to contradict past teaching, not “develop” it.

Feser continued:

The Pope implicitly criticizes previous popes for upholding and applying capital punishment, such as in the Papal States, and he implies that these popes were deficient in their doctrinal understanding insofar as they lacked awareness of our “present level of development of human rights” and ignored “the primacy of mercy over justice” — this despite the fact that previous popes rested their teaching on scripture, the Fathers and Doctors of the Church, and all their predecessors in the papal office. Perhaps the pope does not realize that he is inadvertently laying the groundwork for a future pope to criticize him the way he is criticizing his predecessors. If 2000 years of popes can be wrong about capital punishment — as Pope Francis implies — why should we not conclude instead that it is Pope Francis himself, rather than they, who has gotten things wrong?

The co-author of By Man Shall His Blood Be Shed added

As he has done several times in the past, the Pope appears to be condemning life imprisonment as well as capital punishment. Curiously, Catholics who praise the Pope’s views on capital punishment never seem to comment on his views about life imprisonment.  Why not?  Are Catholics now required to call for releasing serial killers and the like from prison at some point, however heinous their crimes and however dangerous they remain? If not, why not, given the Pope’s repeating sweeping condemnations of life imprisonment as no less wrong than capital punishment?  How are we supposed to deal with the worst offenders if both capital punishment and life imprisonment are ruled out?  Exactly how long should prison sentences be if life sentences are ruled out? Why do the Pope’s admirers not address these questions or call on the Pope to address them?  

Analysis from a Dominican theologian

A Dominican theologian who wished to remain anonymous offered a more detailed critique of Pope Francis’s Dec. 17 address on the death penalty.

In comments to LifeSite, the Dominican theologian noted that Pope Francis’s claim that his teaching “does not imply any contradiction” with the Church’s teaching in the past “renders the entire speech incoherent, since the Church clearly taught in the past the legitimacy of capital punishment.”

In initial remarks, he notes that the death penalty cannot be a “cruel punishment,” as Pope Francis claims, arguing that “since capital punishment is sometimes just, it cannot always be cruel.”

The Dominican pointed out that Pope Francis confuses his own theological views with the teachings of the Church; for example, when he refers to “the Church’s commitment” to abolition. This is really “his personal commitment” and “Catholics as such are not obliged to share it,” the theologian said.

The circumstances, as laid down by the First Vatican Council, in which the teaching of the Pope is also necessarily the teaching the Church, are actually quite restricted. 

The Dominican theologian pointed out that Pope Francis’s appeal to St. John Paul II rests on “a confusion between the doctrine of John Paul II and his personal judgement of the prudence of capital punishment in modern times.”

Taking umbrage at the Pope’s statement that the death penalty is “contrary to the Gospel,” he also points out that: “Christ says the law of Moses was given by God, instancing the command that those who curse their parents be put to death (Mk. 7:9-10), and that Scripture, including therefore the imposition of capital punishment for many offences, cannot be broken (Jn. 10:35).” 

“Hence, it is the claim that the death penalty is opposed to the gospel which is opposed to the Gospel,” he argues.

While agreeing with Pope Francis that “extrajudicial, summary or arbitrary executions” are to be condemned, the Dominican theologian takes issue with the Pope’s appeal to the authority of St. Thomas regarding the death penalty as a (now obsolete) form of self-defense, observing that it rests on a misunderstanding. In comments to LifeSite, he said: 

St Thomas is talking here about self-defense by private individuals, notabout the rights of the State. In article 3 of the same question in the Summa, he says: “it is lawful to kill an evildoer in so far as it is directed to the welfare of the whole community, and hence this belongs to him alone who has charge of the community’s welfare. Thus it belongs to a physician to cut off a decayed limb, when he has been entrusted with the care of the health of the whole body. Now the care of the common good is entrusted to persons of rank having public authority: wherefore they alone, and not private individuals, can lawfully put evildoers to death.” In article 2 he says: “if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since a little leaven corrupteth the whole lump.”

Like Feser and Bessette in their book By Man Shall His Blood Be Shed, the Dominican argues that capital punishment can work powerfully to elicit repentance in serious criminals. 

“Capital punishment offers the possibility for a repentant criminal to expiate at least part of his sin upon earth, more briefly and less painfully than in purgatory; hence it can itself be an offer of mercy,” he said.

The theologian added: “Cardinal Newman wrote movingly in Difficulties of Anglicans, about the compassion felt for condemned criminals in the papal states, and how special confraternities existed to pray that they would accept their penalty in this spirit, and how in this way the conversions of great sinners were sometimes accomplished.”

Pope Francis in contrast says that this “inhuman form of punishment” ignores “the primacy of mercy over justice.”

Like Feser, the Dominican is also concerned about the Pope’s attack on life imprisonment. 

“He who can do the greater can do the less. Since the civil power can inflict death, it can also inflict perpetual punishment,” he said. “This claim [by Pope Francis] also gives new grounds for doubt about whether Pope Francis believes in the dogma of hell, in the way in which the Church teaches it, namely as a state, precisely, of ‘perpetual punishment.’”

In his Dec. 17 address to the International Commission against the Death Penalty, the Pope says that his predecessors, have unduly “sacralized the value of laws.” On the contrary, the Dominican theologian sees the Pope’s perspective as secularized.

“Temporal power, as a shadow of divine power, has an intrinsically sacred element. St. Paul states that the ruler, even if a pagan, is ‘the minister of God’, and that he ‘does not bear the sword in vain’, i.e. that he can legitimately execute the worst criminals. Pope Francis’s words put him at odds the apostle to the Gentiles,” he says.

Perspective from a Catholic historian 

A British Catholic historian based in the U.S also questioned the defensibility of Pope Francis’s novel teaching on the death penalty.

Dr. Alan Fimister is an Assistant Professor of Theology and Church History at St. John Vianney Theological Seminary in Denver, and Director of the Dialogos Institute, which encourages debate on legitimately disputed theological questions among Catholics. 

Dr. Fimister has expressed concern in the past about the possibility of reconciling opposition to capital punishment in principle with the traditional teaching of the Church throughout the first and second millennium (up to and including John Paul II and Benedict XVI) and also about the compatibility of episcopal demands for its abolition in practice with the rightful autonomy of the laity in questions of temporal government. 

As he explains “It is for the hierarchy to define, in accordance with scripture and tradition, the conditions under which capital punishment is legitimate but it is for the laity to decide when and where those conditions are met. Obviously, clerics will have views on these matters like anyone else but they ought not to be expressed in an official capacity.”

“Although the new paragraph in the Catechism is not unproblematic” Dr. Fimister told LifeSite, “it is still possible to read the text itself as making the inadmissibility of the death penalty dependent on the alleged fact that ‘more effective systems of detention have been developed.’”

“Read this way, while appearing to take up a temporal prudential judgment reserved to the lay faithful, it would not directly contradict the teaching of the ordinary and universal magisterium concerning the legitimacy of the death penalty in principle,” he said.

“On the other hand, it has always been clear that Pope Francis’s personal view expressed in less formal contexts (including sadly the statement cited in the new section of the Catechismand now this address) is much harder to reconcile with the immemorial teaching of the Church.”

Fimister continued:

There is an ambiguity in John Paul II’s 1997 version  of 2267 as to what is meant by ‘the unjust aggressor.’ If ‘the unjust aggressor’ means ‘the murderer’ or ‘the rapist’ as a category then the 1997 version is giving us the same doctrine the 1566 Roman Catechism which implies that the legitimate use of the death penalty would both avenge crime and give security to life. Unfortunately, there is another way of interpreting n. 2267 (1997) and that is as saying that the actual individual murderer etc. has to be uncontainable by the prison system in order for the death penalty to be justified. This would not be consistent with prior teaching and would also imply a much too broad understanding of double effect. The use of the death penalty cannot be justified in such a way as would imply that one may do evil that good may come of it. One may never do evil that good may come of it. Pope Francis is coming down on the problematic side of this ambiguity and developing it into further and even more problematic conclusions (including the implicit condemnation of the universal and ordinary magisterium as “more legalistic than Christian” and “lacking in humanity and mercy”).

Dr. Fimister also pointed to some remarks of the philosopher Elizabeth Anscombe in her essay ‘The Dignity of the Human Being.’ 

“To regard someone as deserving of death is very definitely regarding him, not just as a human being but as endued with a dignity belonging to human beings, as having free will and as answerable for his actions ... Capital punishment, though you may have reason against it, does not, just as such, sin against the human dignity of one who suffers it. He is at least supposed to be answering for crime of which he has been found guilty by due process.”

Professor Anscombe, sometime head of the Cambridge philosophy faculty and celebrated pupil of Wittgenstein, was no slouch in her zeal for human dignity, facing arrest for barricading abortion clinics with her own body. 

“We always have to be careful to avoid claiming that the teachings of Christ and the Apostles somehow contain hidden meanings contrary to how the Church has understood them and apparent to us only now,” Fimister said. “As Vatican I reminds us, ‘If anyone says that it is possible that at some time, given the advancement of knowledge, a sense may be assigned to the dogmas propounded by the Church which is different from that which the Church has understood and understands: let him be anathema.’”

As one informed source observed wryly: “It is hard to understand how Pope Francis can hold that the death penalty is per se contrary to the Gospel and yet was taught and practiced legitimately (if regrettably) in the past but is now ‘inadmissible.’ But one needs to remember that the Pope is widely held to teach that sometimes some people simply cannot help but commit adultery and are therefore blameless. We can only hope that one day the ‘change in the conscience of the Christian people’ will make adultery inadmissible as well.”



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