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The Horns of the Death Penalty Dilemma

Above: St Dunstan crowns King Edgar. Photo by Fr. Lawrence, OP.

In his annual meeting with the diplomatic corps of ambassadors accredited to the Holy See on January 9, 2023, Pope Francis has doubled down on his novel teaching on the death penalty: “The death penalty cannot be employed for a purported State justice, since it does not constitute a deterrent nor render justice to victims, but only fuels the thirst for vengeance. I appeal, then, for an end to the death penalty, which is always inadmissible since it attacks the inviolability and the dignity of the person, in the legislation of all the countries of the world” (source).

This article is not going to be another attempt to prove that the Catholic Church has always (and indeed infallibly) taught the permissibility of the death penalty under certain circumstances. That project has already been done many times,[1] and I have written about it at length elsewhere.[2] Rather, I would like to focus on the dilemma into which those who attempt to defend Pope Francis’s novel teaching on the death penalty—reflected in an official change to the Catechism—necessarily fall. The pro-Francis apologists can’t possibly “win” in this scenario.

For either:

(A) Pope Francis is attempting to change the constant teaching of the Church—or, more precisely, of Scripture and Tradition—that the death penalty is not intrinsically immoral, and indeed is justifiable and justified under certain circumstances; or (B) He is “merely” stating that there is no longer any possible prudential situation in the entire world in which the death penalty may be justified in order to defend the common good of society from malefactors.[3]

It’s pretty obvious that if (A) is the case, then the pope is at least materially heretical.

However, if (B) is the correct interpretation, he is equally in error, because not even the most extreme ultramontanist imaginable ever maintained that the papacy is endowed with a political prudence superior to and inclusive of the political prudence of all princes, presidents, prime ministers, parliaments, legislatures, and courts of the entire world, such that he is capable of knowing, in detail, what is right and just in every possible social circumstance. (Heck, during the era of the Papal States no one ever said that the pope was guaranteed to know what is politically expedient for the Papal States, let alone for the rest of the globe!) Moral actions are, after all, always about the particular: one can act only in the hic et nunc, with all of its circumstances. It would be nonsense to say “generally speaking, the death penalty is never admissible in any case, but there might be exceptions.”

In short, if someone believes the death penalty to be prudentially inadvisable in given circumstances, then he can never hold it to be “inadmissible” simply speaking; while if he believes the death penalty is intrinsically immoral, he is no longer a Catholic. Thus, either Pope Francis is unjustly absorbing and arrogating to himself all secular power, with all the practical knowledge and political prudence on which it rests; or he is abrogating Divine Law and Natural Law.

Gravely wrong, and harmfully wrong, either way.

The Church has taught, from the New Testament and Pope Gelasius through Pope Leo XIII and the Second Vatican Council, that God has instituted two powers: the sacred and the temporal, or, in shorthand, the Church and the State. They have separate spheres of authority, albeit with overlapping terrain (e.g., marriage is rightly a concern of both Church and State). Now, when the Church teaches authoritatively about moral universals (e.g., that abortion and euthanasia are intrinsically evil), the State is obliged to accept her determinations—if perchance the light of reason in its rulers is not strong enough to arrive at them independently. The fact that most States ignore or contradict the Church’s moral teaching will redound to their harm and eventual dissolution.[4]

However, this moral teaching must be about things that can be universalized, i.e., it is ALWAYS right or wrong to do such-and-such. Once one enters into matters where prudential determinations on the political common good must be made on the basis of local circumstances (e.g., how good prisons are, how reliable the police are, how well the penal process works, etc.), the State has the primary and direct responsibility, and it would be contrary to the nature of the Church and her authority—and this, according to the magisterium itself!—for a pope or bishop to arrogate to himself this prudential domain. It would be pure theocracy at that point, which has never been the Church’s teaching.[5]

The only rare exception would be when a particular political entity happens to be run by the pope (as were the Papal States and as is the current Vatican City) or by a bishop (as in the archepiscopal principalities formerly found in Europe, e.g., in Salzburg, whose Prince-Archbishop once had Mozart thrown down the stairs). There and there alone, the Church and State authorities are fused; yet this is a de facto fusion, not one that is demanded by the nature of things. Obviously in 99% of cases, the Church and State authorities are separate—and this, moreover, by the wisdom of Divine Providence, as so clearly laid out in Catholic teaching from Pope Gelasius I’s Duo Sunt to Pope Leo XIII’s Immortale Dei.

So, once again, if Francis means to teach universally about the evil of the death penalty, we are dealing either with a claim about its intrinsic evil—which cannot be sustained against 2,000 years of Catholic teaching on the subject, not to mention the witness of Divine Revelation—or with a claim about its always-and-everywhere imprudence of application, which is simply not the pope’s judgment to make without seizing all actual civil authority and political prudence into his own hands, in a theocratic monism that would make even Innocent III or Boniface VIII blush.

The question may be raised: “Does Church teaching say anything about the circumstances under which the death penalty is justifiable? Or are those circumstances left entirely to the reasoning of the lawgiver?” The answer is yes. One can find indications in magisterial texts of how capital punishment should be regulated and administered, and of course one can find indications that its use should be minimized (that was John Paul II’s and Benedict XVI’s line). But it still belongs to the nature of ethical reasoning that these indications would be about general circumstances, taking the form of “In such and such cases (e.g., where excellent prison systems and a reliable penal process are available), the death penalty should be avoided.” Actual ethical choices are always about particulars and must be assessed according to particulars, by those divinely empowered to assess them.[6]

This is why Cardinal Ratzinger, acting as head of the Holy Office, confirmed in 2004 (in the context of the US presidential election) that a Catholic can disagree with the pope (then John Paul II) about the death penalty and just war, but not about abortion and euthanasia.

It’s important to see not only that Francis is wrong, but that he is dangerously wrong, on this subject. I mean, the pope could well be wrong about something that’s rather minor in the large scheme of things, like what is the best color for a pope’s shoes, or where is the best place in the Vatican for a pope to live. But when the pope is wrong about something that touches on the judicial and criminal systems of hundreds of nations and on the foundations and ramifications of their God-given authority, one is dealing with a level of wrongness that threatens the good of political society—the common good that Aristotle and Aquinas describe as something divine.

Indeed, to return to our earlier either/or dilemma, it may be that the pope is culpable of heresy regardless of which of the two alternatives we take. For (as a friend of mine put it) “if the pope thinks that his moral judgment as to the just response to any possible situation involving a potentially capital crime is superior to anyone’s moral judgment in any situation now and into the future, then this would also be heretical, for he would be undermining the naturally known truth that the judgment of crime and criminals belongs by nature (i.e., in fact, by God’s grant) to the civil authority: ‘You would have no authority over me,’ says Our Lord as He is being sent to capital punishment, ‘unless it had been given to you from above’ (Jn 19:11).”

Yet still the papal apologists defend the Roman Pontiff to this point of irrationality. Some even go so far as to say: “I have never found anything erroneous in Pope Francis’s magisterium.”

I long for the good old days when apologists defended Christian orthodoxy and Catholic doctrine, when they offered a robust apologia for the traditional Faith rather than joining in with papal apologies for the wrong the Church has done with her rigid assumptions (like those horrible popes who had malefactors put to death in the Papal States!) or cruel practices (like the thousand years of “dark night” when the Church’s official worship made nearly everyone a “dumb spectator”).[7] Today, on the contrary, we see apologists who bend and flow with the times, throwing in their hat with the modernists’ doctrinal evolutionism.

As Jesus said about rabbinical customs, “You have heard it said… but I say to you,” our papal apologists have arrived at the threshold of a new dispensation: “You have heard it said in the Bible (or in the Church Fathers and Doctors, or in the universal ordinary magisterium, or in previous papal and conciliar documents, etc.) that the death penalty is permissible and admissible as a punishment for serious crime and for the protection of the civil common good, according to the judgment of civil authorities; but I say to you, things have changed, and now we have a different teaching for today: it is never permissible or admissible,” etc. Thus is born Catholic Mormonism, except with the Book of Bergoglio as the newest testament. In this way “Catholic Answers” turns into “Vatican Views.”

It is one thing for apologists who are not theologians to repeat the papal line. Yet even certain bishops of the Catholic Church, having admitted they did not understand His Holiness’ death penalty teaching, nevertheless proposed to alter the national catechism accordingly.[8] Imagine catechizing your child with a teaching that is literally unintelligible even to bishops!

“But what does ‘inadmissible’ mean, Dad?”

“Son, as Bishop Barron said, it’s ‘eloquent ambiguity.’”

Whatever happened to the notion that the universal ordinary magisterium, which we glimpse in the unbroken constancy of the content of hundreds of catechisms published over the past thousand years, is itself infallible? Or has all infallibility been concentrated in the person of the pope and sucked out of every other lodging it enjoyed within the Catholic Church? Behold: the religion of solo papa, the weird counterimage of that other reductionist Christianity based on sola Scriptura, sola fide, sola gratia.

In reality, the modified new Catechism—that is, the Catechism of the Catholic Church with the Bergoglian replacement paragraph on the inadmissibility of capital punishment—may not and must not be used by any believing Catholic in any circumstance or for any reason. I suppose, as with the Synod on Synodality (or “Syn on Syn,” as some have called it), we should be once again grateful for the rise of a Shibboleth by which we can distinguish a true Catholic from a false one.


[1] Several good points and links to further reading are made in this post by Joseph Trabbic.

[2] See Peter Kwasniewski, “What Good is a Changing Catechism? Revisiting the Purpose and Limits of a Book.” This lecture is contained in vol. 2 of The Road from Hyperpapalism to Catholicism (Arouca Press, 2022), 137–55; the same volume has a number of relevant chapters on the subject (see, e.g., 44–51, 58–59,75–77, 88–91, 156–59, 246–49, 298–99.

[3] That would be the necessary set of conditions required to declare that it is “inadmissible” in every case.

[4] On these points, see volume 2 of the collected papers from The Josias.

[5] The best single source is Leo XIII’s encyclical on the two powers, Immortale Dei, but the doctrine, known as the “Two Swords,” I have summarized is found in many places, enunciated by Pope Gelasius, Gregory VII, Boniface VIII, among many others.

[6] I say “divinely empowered” because civil authorities do indeed receive their authority from God, not from the people (although the leader can be chosen by the people): see Leo XIII’s Diuturnum Illud.

[7] It was Bugnini who applied the phrase “dark night” to the condition of the Catholic laity confronted by a Latin liturgy; it was, sadly, Pius XI who described laymen praying quietly at Mass as “dumb spectators.”

[8] See LifeSite US bishops follow Pope in calling death penalty ‘inadmissible,’ admit they don’t know what it means.”

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