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August 18, 2018 (LifeSiteNews) — In the less than three weeks since the Congregation for the Doctrine of the Faith (CDF) promulgated and explained on August 2 a new papally mandated revision of the Catechism of the Catholic Church’s teaching on the death penalty, the Internet has been awash with conflicting interpretations of this revised version of CCC #2267. It seems like Amoris Laetitia All Over Again: some Catholic scholars affirm, while others deny, that another novel papal teaching can be given a valid ‘hermeneutic-of-continuity’ reading in harmony with the previous magisterium. And as we saw in the wake of Amoris two summers ago, scores of reputable Catholic scholars have once again signed a letter to the College of Cardinals asking them to urge the Holy Father to withdraw or clarify a contentious and confusing intervention that appears to contradict Catholic orthodoxy.

The point of scholarly disagreement in this case is whether or not Pope Francis’ new ruling can be reconciled with the clear and constant teaching of the traditional Magisterium, based on both Old and New Testaments, that capital punishment is legitimate in principle – i.e., that it’s not immoral per se. Some say there can be no true reconciliation, while others say there can.

It is scarcely surprising that the most plausible attempts to reconcile the old and the new teachings lean heavily on the explanatory Letter to Bishops’ signed by the CDF Prefect, Cardinal Luis Ladaria. For the Roman Curia’s highest doctrinal authority has no hesitation in asserting that the new formulation of CCC #2267 “expresses an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium” (#8). Whether His Eminence has offered convincing evidence for that assertion, however, is another question. One scholar who thinks he has is Dr. Barrett Turner, assistant professor of theology at Mount St. Mary’s University at Emmitsburg, MD. Prof. Turner has posted an article on the ‘Catholic Moral Theology’ website entitled “Death Penalty Development: A Conditional Advance of Justice.” 

In this article, Turner criticizes the position of Dr. E. Christian Brugger, a ‘new natural law’ theorist and long-standing advocate of the view that capital punishment is, and always has been, intrinsically contrary to the Law of Christ. According to Brugger, previous Church teaching that allowed the death penalty under some circumstances was simply mistaken, but, never having been proposed definitively and infallibly, has been open to magisterial correction. 

Turner, on the other hand, argues that the new amendment to the CCC should not be seen as contradicting and correcting a previous and supposedly erroneous magisterial teaching, but as a new prudential judgment of the Church that under modern circumstances the death penalty is always wrong. This would effectively reduce Pope John Paul II's “rarely if ever justifiable” (Evangelium Vitae) to “never justifiable.” Turner appeals above all to Cardinal Ladaria’s argument that the Church’s previous endorsement of the death penalty was understandable in its own time, but that new social circumstances – improvements in the penal system that adequately safeguard the common good without recourse to capital punishment, our deepening awareness of human dignity, and changes in our understanding of penal sanctions – combine to rule it out in today’s world. In the light of this explanation, and noting that Ladaria says the death penalty was “acceptable” under previous socio-political conditions, Turner sums up his reading of the CCC amendment as follows: “In the judgment of Francis, the death penalty is permissible in one age and impermissible in another precisely because of a change in circumstances” (emphasis added).

Now I would love to believe that this is indeed “the judgment of Francis.” However, I am afraid the available evidence strongly suggests that the Holy Father agrees rather with Christian Brugger's view that the death penalty has always and everywhere been immoral, and that the Church is only now becoming aware of her previous error in endorsing it.  

First of all, nearly all of Cardinal Ladaria’s argumentation, while not explicitly endorsing Brugger’s view, is clearly compatible with it, since His Eminence’s case for doctrinal continuity emphasizes above all (as Brugger has often done) the strong — though not quite absolute — opposition to capital punishment shown by the last two popes, John Paul II and Benedict XVI, and their calls for its legal abolition in the interests of human dignity. The only statement in the Cardinal’s letter that could be taken to contradict Brugger is his statement in #2 that past circumstances “made the death penalty an acceptable means for the protection of the common good.” But there seems some ambiguity here: it is not clear whether this means (a) “acceptable” objectively (in God’s sight), or (b) “acceptable” merely in the sight of near-universal public opinion (as part of the long-standing ‘law of nations’ — the ius gentium — about which Turner makes some interesting observations). Indeed, the actual amendment to the CCC (more weighty than the Cardinal’s letter introducing it) suggests that (b) is the way Francis understands his self-quotation in the revised article 2267; for the text begins by saying the death penalty “was long considered” an appropriate response to grave crimes — thus insinuating that it wasn’t really an appropriate response.

This impression is reinforced by both the remaining content and the context of the amendment: 

First, consider its key words, i.e., the quotation of Pope Francis’ assertion in his October 11, 2017, speech that the death penalty is inadmissible “because it is an attack on the inviolability and dignity of the person.”  The text conspicuously fails to add a phrase such as “under modern circumstances” after the word “because.” In the absence of any such qualifier, this affirmation reads naturally as meaning that the death penalty has always and everywhere been “inadmissible,” i.e., morally wrong. Why? Precisely because the human person always and everywhere possesses the same dignity, as a creature made in God’s own image and likeness.

Also, this new condemnation of capital punishment is prefaced by words that clearly designate a doctrinal statement, not a mere prudential judgment adapted to modern circumstances: “The Church teaches, in the light of the Gospel, that ‘the death penalty is inadmissible. . .’”  Now, when it is said that “the Church teaches” something — Ecclesia docet — theologians always understand that as a statement of a doctrinal thesis — something which by its very nature is proposed as being true always and everywhere.  When the See of Peter makes a strong statement expressing a merely prudential judgment, we never hear those words. John Paul II, for instance, repeatedly denounced as unwarranted the U.S. invasion of Iraq in 2003. But never did we hear him, or any other Vatican spokesman, say, “The Church teaches that the U.S. invasion of Iraq is unjust.” And never have we heard even Pope Francis assert, “The Church teaches that Europe should be more generous in opening its doors to Middle Eastern refugees,” or “The Church teaches that the U.S. should not build a wall on its border with Mexico,” even though he has made it clear he supports both those propositions.

So much for the amendment’s content. Now for its historical context, which shows that Francis judges capital punishment to be intrinsically immoral, or at least, immoral always and everywhere since the Gospel — the New Law of Christ — came into effect:

First, in a homily of May 11, 2017, the Pontiff included capital punishment (along with slavery and ‘wars of religion’) in this generalization:  “‘[S]omething that formerly seemed normal, and not sinful’ is today considered a ‘mortal sin’: in reality it was a sin, but that historical period did not allow it to be perceived as such’” (emphasis added). In other words, the Church, misled by the prevailing spirit of the age, got it wrong for many centuries about capital punishment, even though medieval sectarians such as the Waldensians got it right. See my critical comments on this homily here.

Even more clearly, in the very same speech that includes the passage now cited in the CCC revision, Pope Francis made very explicit his view that capital punishment was not morally acceptable even under those past conditions by which he and the CDF explain its historical acceptance by the Church. For in this speech of October 11, 2017 he asserted that the death penalty is “in itself contrary to the Gospel” (per sé contraria al Vangelo). Readers can see my observations on this speech here

For the above reasons, the proposed ‘hermeneutic-of-continuity’ reading of the Pope’s CCC amendment seems to me open to the charge of failing to take sufficiently into account its historical and literary context. A more plausible reading is that the Pope means to teach — in the amendment itself as in the very speech it cites as its unique source — that the death penalty is “in itself contrary to the Gospel.” And that contradicts the teaching of all Francis’ predecessors and their approved catechisms.

It is also worth observing that the new CCC amendment seems to imply another apparent doctrinal change — one that has philosophical implications that go wider and deeper than just the death penalty. After its reference to an increasing awareness of human dignity as the first reason for the amendment, the revised text appeals to “a new understanding [that] has emerged of the significance of penal sanctions imposed by the State.” And in Cardinal Ladaria’s accompanying letter it is explained to us that this “deepened” understanding (#2) of penal sanctions is that they “should be oriented above all to the rehabilitation and social reintegration of the criminal” (#7).

“Above all,” Your Eminence?  Your assertion contradicts the previous article of the Catechism, which deals with penal sanctions in general! In accordance with the teaching of St. Thomas Aquinas and the unbroken tradition of the Church, article #2266 asserts, “The primary purpose (Latin scopum) of punishment is to redress the disorder cause by the offence.” And after mentioning other salutary effects of penal sanctions, the Catechism places in last place the purpose which Ladaria says is first: “Finally, punishment has a medicinal value; as far as possible it should contribute to the correction of the offender” (emphasis added).

Will we soon see another amendment to the Catechism, this time to #2266, making ‘the first last, and the last first’? If so, why should we be confident that this newly “emerged” understanding of the nature and purpose of punishment is a work of the Holy Spirit? Could it not be, rather, an example of that subservience to the spirit of the age which, according to Pope Francis, prevented the Church for two millennia from recognizing that her allowance of the death penalty contradicted the Gospel?  For a devastating indictment of the ‘therapeutic’ view that rehabilitating criminals is the primary objective in punishing them, see C.S. Lewis' classic essay against this position, entitled “The Humanitarian Theory of Punishment,” in which he argues that this theory assails the very foundations of criminal justice and opens the way for totalitarian abuses of human rights.  

Finally, it is worth considering how much magisterial authority is carried by this amendment to the Catechism. Not a few commentators have opined that adding a citation from Pope Francis’ 2017 speech to the Catechism gives the cited statement greater magisterial weight than it had previously. But according to the original chief architect of the CCC, then-Cardinal Joseph Ratzinger, this is not the case. In his little book Introduction to the Catechism of the Catholic Church (1992), Ratzinger, who was then Prefect of the CDF, considered the question of the CCC’s doctrinal authority and pointed out that, as an essentially pastoral document — a compendium of already-existing Catholic doctrine  —  it does not have  the inherent authority to hand down new magisterial judgments: “The individual doctrines which the Catechism presents receive no other weight than that which they already possess” (p. 26).

In that case, the present contentious amendment to the Catechism still has no more authority than that of the 2017 papal allocution which it cites as its one and only magisterial source. And allocutions are not high up in the ‘pecking order’ of papal interventions; they fall well below the level of Encyclical Letters and Apostolic Exhortations, Epistles and Constitutions in which the popes express their major doctrinal judgments. If, as seems very likely, Pope Francis means to teach in the new version of CCC #2267 that capital punishment is “in itself contrary to the Gospel,” then with all due respect, Catholics cannot be expected to give their assent to a teaching so flagrantly contrary to the clear teaching of Sacred Scripture as interpreted  by all previous popes and their approved catechisms.