Evangelium Vitae: Reconciling Tradition, Part 1

JOHN PAUL II'S ENCYCLICAL Evangelium vitae raised significant consternation among Catholics on the matter of the death penalty. To the death penalty abolitionists, who seemed insensitive to, or disdainful of, the Church's traditional teaching, the Pope did not seem to go far enough. To the death penalty advocates who were jealous to preserve the Church's tradition regarding the death penalty in the order of justice, the Pope seemed to go too far and contradict the Church's traditional teaching by appearing to reject the retributive or vindicative justification for the death penalty and limiting its use under a unjust aggressor-type analysis.*

In my reading of the encyclical Evangelium vitae, Pope John Paul II does neither of these. Pope John Paul II navigates deftly between the two extremes. Nowhere in the encyclical does he teach that the death penalty is intrinsically unjust, and that teaching ought not to be imputed to him. Nor does he sever the justice of the death penalty--that is, its moral good--from its retributive or vindicative roots. John Paul II leaves what I have called the tradition of justice of the death penalty untouched. What John Paul II does, rather, is to recall what I have called the tradition of mercy in the application of the death penalty and develop that particular tradition.

In this post we will discuss the notion that Pope John Paul II laid the groundwork for a future development in Catholic doctrine that the death penalty is intrinsically evil, in a manner that abortion, euthanasia, intentional suicide are intrinsically evil. In other words, we address the possibility that the Pope set in motion that Fifth Commandment's absolute prohibition against the intentional killing of an innocent human being applies, in all its rigor, to the killing of malefactors by public authority. In the next few blog postings after this one, we will address the difference between the order of justice and the order of mercy, my view of what John Paul II in his encyclical addressed as the limits on the imposition of the death penalty, what role the order of mercy has on the application of that penalty, how John Paul II leaves the Church's traditional teaching on the death penalty in the order of justice undisturbed, and how he develops the Church's teaching on the death penalty in the context of the order of mercy.

Nowhere in the encyclical does Pope John Paul II teach that the death penalty is intrinsically evil. Nor does John Paul II set up any sort of legitimate foundation for development in Catholic moral doctrine that would lead to finding the death penalty to be intrinsically evil. There is no basis in the encyclical for abolition of the death penalty on the grounds that it is intrinsically evil or per se against justice. None. In my view, to suggest such a thing is a grievous wrong and intellectually dishonest reading of the encyclical in the light of tradition. It is a reading based upon ideology.

Second, Pope John Paul in this encyclical does not change the traditional doctrine of the Church regarding the death penalty for the simple reason that he does not even address the question.** In my reading of the encyclical, he presupposes the validity of prior teaching. His teaching is perfectly compatible with prior tradition that the death penalty is an "exception" to the general doctrine that innocent human life is untouchable applicable to public authority alone, and that this exception applies for extremely grave and very specific and proven crimes. He does not touch traditional teaching which justifies all punishment, including the death penalty, as just on the grounds of of vindication or retribution, that is, as a means to re-establish and restore the order of justice which has been disrupted by a gravely wrongful act against God and the common good. As such, John Paul II presumes (and certainly does not deny) that the death penalty when justly applied--while a great physical evil, particularly for the individual involved--may, for all that be a justified by its retributive or vindicative aspect.

To show that Pope John Paul II does not change the traditional teaching of the Church on the moral liciety in justice of the death penalty is easy if the entire encyclical is looked at and compared to the short section on the death penalty. First, Pope John Paul makes it clear that the Church's constant tradition as it relates to the Fifth Commandment is that "the direct and voluntary killing of an innocent human being is always gravely immoral." EV, 57. Pope John Paul II declared that "direct abortion, that is, abortion willed as an end or as a means, always constitutes a grave moral disorder since it is the deliberate killing of an innocent human being." EV, 62. He confirms that "euthanasia is a grave violation of the law of God, since it is the deliberate and morally unacceptable killing of a[n innocent] human person."*** EV, 65. Pope John Paul II speaks of the "inviolable right to life of every innocent human being." EV, 71. Clearly, the gravamen of the encyclical, and the absolute and exceptionless protection of life it teaches, applies to innocent human beings, and not malefactors.

One has to conclude that malefactors (those who are not innocent of capital offenses) are excluded from the exceptionless, absolute norms that bind in both justice and charity and protect the innocent. An innocent human being may never intentionally be put to death by private or public authority. This leaves the Church's traditional teaching that a malefactor can justly be put to death by public authority entirely untouched.

That this is John Paul II's intendment is made even more clear when the language used by John Paul II in the context of the death penalty is compared to that used when addressing the life of innocent human beings. The absolute and exceptionless moral principles that relate to innocent human beings do not apply to "criminals and unjust aggressors." EV, 57. While "great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment 'You shall not kill' has absolute value only when it refers to the innocent person." The inescapable implication of this statement is that the absolute prohibition against killing an innocent human life does not apply when confronting "criminals and unjust aggressors." The life value of the criminal condemned of a capital offense, while still worthy of "great care" and "respect," is not absolute, and this can only be because the public authority retains the right to put him to death under the Church's traditional doctrine.

Koritansky points out the obvious in his book Thomas Aquinas and the Philosophy of Punishment:†

The fact remains that the Church, both in the 1997 [Catechism of the Catholic Church] and in [Evangelium vitae] could have simply stated that the death penalty is only justifiable as indirect killing, but has obviously stopped short of doing so. One indicator implying [that John Paul II did not intend to view the death penalty as intrinsically evil] is that [Evangelium vitae] itself, in the section following the discussion of capital punishment, makes the claim that the Fifth Commandment "has absolute value when it refers to the innocent person." . . . If capital punishment is only to be justified in terms of self-defense [and not as an expression of retributive or vindicative justice as in Catholic traditional teaching], there would be no reason for the pope to include the word "innocent" in this definitive statement. If justifiable instances of the death penalty are only indirect, he may have simply stated that it is always wrong directly to kill another human being period.

Pope John Paul II, however, does not rest satisfied with his clear statements of the absolute value of innocent human life. He is without question also solicitous of the life of the criminal guilty of a capital offense, even though the malefactor's right to life is not absolute. In his Evangelium vitae, John Paul II is at his most pastoral. From the Chair of Peter, he might be seen as having exercised his Galgen ministerium, his "gallows ministry" or death row ministry, preaching the Gospel to the spirits in prison, as it were. (Cf. 1 Pet. 3:19).

His is a ministry to Cain, to those like Cain who have violated the "'spiritual kinship uniting mankind in one great family," to Cain "'who was of the evil one and murdered his brother,'" to Cain who is punished by God himself since "the blood of the one murdered demands that God should render justice," to Cain who is "cursed by God and also by the earth." EV, 8, 9. And yet this is the Cain to whom God showed mercy, for God "is always merciful even when he punishes." This is the Cain--who despite his crime--has not lost his "dignity," a dignity which "God himself pledges to guarantee." With respect to Cain, it is not a matter of justice alone. With respect to Cain we are involved with "the paradoxical mystery of the merciful justice of God," the same God who punished him. EV, 9. There is even here, as John Paul II reminds us haling back to the words of St. Ambrose of Milan: even to the murderer "the divine law of God's mercy should immediately be extended."

In Evangelium vitae, we find John Paul II exercising a ministry to Cain, a ministry of mercy influenced by the Gospel of Jesus Christ, the "Word of life" and "Word of God," who was branded a criminal condemned to die unjustly by the laws of his time, and Who by His sacrificial death on the Cross, "expresses and requires a more radical 'justice,' and above all it implores mercy.'" EV, 25, 29, 30. He reminds us, that God does not delight in the death of the living, particularly the innocent, but not for all that excluding the malefactor. To the contrary, it is Satan who so delights in death. EV, 53. Clearly, Pope John Paul II, in addressing the death penalty question, leaves traditional notions of justice and enters into the order of mercy. He does not come as a judge ready to condemn to death in the name of Christ, but as a priest ready to forgive the criminal justly condemned to death in the name of Christ.

The Gospel of Life not only affects questions of justice (as it does in questions involving innocent human life, or the taking of the life of a malefactor by private authority outside of necessity resulting from self-preservation or duty to others when faced with an unjust agressor), but also questions of mercy. In exercising mercy upon a malefactor guilty of a capital offense and so justly executable by public authority, John Paul II recognizes: "Life is always a good." EV, 33. "Life is indelibly marked by a truth of its own." EV, 48.

What is this good? What is this truth? It is that "man's life comes from God; it is his gift, his image and imprint, a sharing in his breath of life." EV, 39; Gen 9:6. Man is "fearfully and wonderfully made." Ps. 139:14. Man's life is therefore not his own. "Human life and death are thus in the hands of God, in his power." EV, 39. Life is as a consequence sacred, and being sacred recognized as inviolable, absolutely when it comes to innocent human beings. EV, 40. That sacred nature and that inviolability "reverberates" in the "first place" in that commandment which prohibits murder: "You shall not kill," which tells us in no uncertain terms "Do not slay the innocent and righteous." (Ex. 20:13; 23:7)

It is this commandment, which already comprehends the "value of life," which is refined by the sublime ethic of the Sermon on the Mount, infused, as it were with the Commandment of Love: "You shall love your neighbor as yourself." (Le. 19:18) It is a commandment invoked by Jesus to the rich young man, and which he perfects with an even greater rigor, a new "force and urgency," preventing not only killing, but legislating to the very soul of man himself, prohibiting any motive of anger or vengeance. (Matt. 19:18; 5:21-22) Jesus extends this commandment of love to encompass even one's enemy. "Even an enemy ceases to be an enemy for the person who is obliged to love him." EV, 41. And this would include the malefactor justly condemned to die. So Jesus' commandment to love our brother, to have mercy upon him, imposes upon us "the requirement to show reverence and love for every person and the life of every person." EV, 41.

How could we expect the Pope to teach anything else? Is he to teach that we are to be irreverent with the life of malefactors? That we are to hate them? No. There is no one, nay not even one, whom the Lord excepts from the requirements of this commandment. Even the unfortunate executioner has to kill the condemned without irreverence and without hate, even with charity, when the demands of justice require it.†† And the Pope is right to remind us of it.

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*For those that advocate abolition of the death penalty, we might put in a large number of American bishops and such authors such as James Megivern and E. Christian Brugger. E. Christian Brugger, "Catholic Moral Teaching and the Problem of Capital Punishment," The Thomist 68 (2004): 41-67. Many of these take the untenable position that capital punishment is a malum in se, in other words, everywhere and in all times, intrinsically evil. In my view, this clearly contradicts the natural law, the order of justice, divine Revelation and the Tradition of the Church. It is, moreover, not supported by Evangelium vitae. The belief is, in fact, probably heretical. As to those keen to preserve the traditional teaching of the Church on capital punishment, we might point to Stephen Long and Judge Antonin Scalia. Steven A. Long, "Evangelium vitae, St. Thomas Aquinas, and the Death Penalty," The Thomist 63 (1999): 511-52. Antonin Scalia, "God's Justice and Ours," Speech at the Pew Forum on Religion and Public Life, Nov. 18, 2002. Others--such as Avery Cardinal Dulles, Charles Rice, Janet Smith--seem to fall somewhere in between. Charles Rice, "Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment," First Things 115 (August/September 2001), 9. Avery Dulles, "The Death Penalty: A Right to Life Issue?" Laurence J. McGinley Lecture, Fordham University (17 October 2000), reprinted as "Catholicism and Capital Punishment," in First Things 112 (April 2001), 30-35. Janet E. Smith, "Rethinking Capital Punishment," Catholic Dossier 4 (Sept.-Oct. 1998): 49-50. For a discussion about the positions of Brugger and Long and one effort at reconciling St. Thomas Aquinas and Pope John Paul II, see Peter Karl Koritansky, Thomas Aquinas and the Philosophy of Punishment (Catholic University of America, 2012). Although I cannot claim to have read even a small proportion of the literature on the subject, I have never seen anyone make mention that there is a distinction between the order of justice (which Pope John Paul II is not addressing in the context of capital punishment in Evangelium vitae) and the order of mercy (which is what Pope John Paul II is addressing in Evangelium vitae). It is precisely for this reason that the Pope does not defend capital punishment on the grounds of retribution or vindication of the order of justice (though earlier in the encyclical he acknowledges that it is the primary justification for punishment generally). The concept of retribution or vindication is irrelevant in the order of mercy except with respect to the subject perception of the public. Conceded that the malefactor may justly (that is without moral fault) be put to death, what does mercy say? It is in the order of mercy, in the order of clemency, where Pope John Paul II imports the moral notion of necessity defense. The Pope suggests that the principles of the "necessity defense" are what define the outer limits of mercy. Indeed to exercise mercy upon a man guilty of a capital offense and allow him to live and threaten the lives of other innocents is not only foolish, it is merciless to the innocents who would suffer at the hands of the unrepentant criminal. Defining the outer limits of mercy is a development well in line with what I have called the Tradition of Mercy. It expresses the thinking of St. Ambrose, St. Augustine, St. John Chrysostom, St. Gregory Naziansus, Pope St. Nicholas the Great. With respect to those guilty of capital offenses, the Pope further urges that mercy go as far as its limits. In the order of justice, the death penalty can be frequently justified. In the order of mercy, the death penalty--in modern penal conditions where the common good can be protected from harm without death of the malefactor, and where the State has failed in protecting the innocent and is therefore as guilty as the criminal it would put to death, and where marginal increased in the retributive good between life imprisonment and death is, for a public negative toward the death penalty, small--can rarely be justified.
**For prior postings on capital punishment, see His Blood Shall Be Shed: Capital Punishment and Scripture, Capital Punishment and the Church: Magisterial Sources, Church Fathers and Capital Punishment: St. Clement of Alexandria, Church Fathers and Capital Punishment: Athenagoras, Church Fathers and Capital Punishment: Origen, Church Fathers and Capital Punishment: St. Hyppolitus of Rome, Church Fathers and Capital Punishment: Tertullian, Church Fathers and Capital Punishment: Lactantius, Church Fathers and Capital Punishment: Sts. Chrysostom, Gregory Nazianzen, and Ambrose, Church Fathers and Capital Punishment: St. Augustine--Justice and the Death Penalty, Church Fathers and Capital Punishment: St. Augustine--Mercy and the Death Penalty, The Papacy and Capital Punishment: Innocent I and Innocent III, Capital Punishment and St. Thomas Aquinas, Capital Punishment and Gratian's Decretum, Capital Punishment and the Church: The Roman Catechism, Capital Punishment and the Church: St. Alphonsus Liguori, The Papacy and Capital Punishment: Pius XII, and Capital Punishment and the Tradition of Mercy.
***The word innocent is clearly implied from the context.
†Koritansky, 176-77.
††The difficulty associated with this is, of course, notorious. As Aristotle said in his Politics: "The difficulty of this office [of executioner] arises out of the odium which is attached to it; no one will undertake it unless great profits are to be made, and any one who does is loath to execute the law. Still the office is necessary . . . ."

Capital Punishment and the Tradition of Mercy

IN LOOKING AT THE ISSUE OF THE DEATH PENALTY, we typically focus on the justice or injustice of it. As we have reviewed in our prior postings on this subject, there is a monolithic and indeed irreformable Tradition--from Scripture, to the Church Fathers, to early and medieval and modern Popes, to canonists, theologians, and Doctors of the Church, and indeed, the Church's own practice--that the death penalty can be justly meted out to punish a malefactor, and that it is justified primarily as vindicative of the moral order that has been trespassed by the wrongdoer. In the order of justice, the death penalty is right and just.

But the death penalty may be viewed on more than one plane. "Authority, you see, has its rights," says St. Ambrose in his letter to the Christian judge Studius, "but mercy has its policy."*

St. Ambrose reminds us that there is an order of mercy under which the order of justice operates. With respect to the death penalty, there is also a tradition of mercy or a tradition of clemency that is equally as prevalent as the tradition that holds that the death penalty may, under proper circumstances, be justly executed by public authority. In other words, though the Church Fathers, Catholic bishops, and, indeed the Popes themselves recognize the justice of the death penalty, they habitually, persistently, fittingly throughout history have cried for clemency, for mercy, that a man justly condemned to die might live.

Philippe de Champaigne, The Good Shepherd

In doing so, the principal focuses in this Tradition of Mercy have been three. First, the condemned man is viewed as a soul that is still subject to forgiveness, to repentance. Taking his life away--which might be justly done--yet takes away from him that precious time within which only conversion may occur. After death comes judgment. (Hebrews 9:27) While one is alive, there is hope that God's grace will change the man. The worth of the conversion of one soul--especially of one that has sinned against God and man so grievously as to merit the punishment of physical death--was seen as something more valuable than the creation of the whole universe.* The parable of the lost sheep was appropriate. If a man had one hundred sheep, and one of them went astray, the Good Shepherd would leave the ninety-nine in the mountains, and go seek for the one who has gone astray. (Matt. 18:12-14; Luke 15:3-7). This was the impetus of the so-called "gallows ministry." We find this sentiment well-expressed by St. Jerome in his Commentary on Joel:

For the Lord is gracious and merciful and prefers the conversion of a sinner rather than his death. Patient and generous in his mercy, he does not give in to human impatience but is willing to wait a long time for our repentance. So extraordinary is the Lord’s mercy in the face of evil, that if we do penance for our sins, he regrets his own threat and does not carry out against us the sanctions he had threatened. So by the changing of our attitude, he himself is changed.

There is nothing which exhibits this felt sentiment than St. Ambrose, who, in his work Cain and Abel, clearly states the preference of letting a man justly condemned to die to live through the exercise of clemency:

From the point of view of our faith, no one ought to slay a person who in the course of nature still would have time for repentance up to the very moment of his death. A guilty man provided a premature punishment had not deprived him of life could well procure forgiveness by redeeming himself by an act of repentance, however belated.

Cain & Abel, II.7.38. St. Augustine is equally insistent on this, and we have treated it in other posting, St. Augustine--Mercy and the Death Penalty--to which the reader is referred.

Second, there was something unseemly in putting a man to death--though God gave public authority the power to do so--because it was recognized that, despite the marring of that dignity through a capital offense, the condemned man still had reason, still had a spiritual soul, and, to that degree, had the same elementary dignity as those who were putting him to death. In his famous Homilies on the Statues (XVII.3), St. John Chrysostom describes the death penalty as putting to death the image of God, and something that is irrevocable. St. Gregory Nazianzus also shares in this them when he tells the Christian magistrate in his Oratio XVII.9 that the Christian magistrate has the "sword, not so much that you may use it, as that you may threaten and deter." "You are the image of God," he tells the Christian magistrate, and he has jurisdiction over "those who are made in God's image."

Third, granting clemency or mercy was seen as something commanded by the Gospel. "Be merciful, just as your Father is merciful." (Luke 6:36) "Be kind one to another, merciful, forgiving one another, even as God has forgiven you in Christ." (Eph. 4:32) "Put on then, as God's chosen ones, holy and beloved, heartfelt compassion, kindness, humility, gentleness, and patience, bearing with one another and forgiving one another, if one has a grievance against another; as the Lord has forgiven you, so must you also do." (Col. 3:12-13) And, of course, which Christian did not pray: forgive us our trespasses as we forgive those who trespass against us?

This Gospel emphasis is perhaps most beautifully stated by the great Pope St. Nicholas I (r. 858-67) in his letter to the Bulgars, only recently converted.

You must give up your former habits and not merely avoid every occasion of taking life, but also, without hesitation and in every possible circumstance, save the life of body and of soul of each individual. You should save from death not only the innocent, but also criminals, because Christ has saved you from the death of the soul. This is in accordance with the most wise Solomon: "Rescue those who are being dragged to death, and from those tottering to execution withdraw not." (Prov. 24:11)

Ita et vos postquam electione Dei vocati, et lumine ipsius illuminati estis, non jam sicut prius mortibus inhiare, sed omnes ad vitam tam corporis, quam animae debetis omni occasione inventa procul dubio recovare, et sicut vos Christus de morte perenni, qua detinebamini, ad vitam aeternam reduxit, it ipsi non solum innoxios quosque, verum etiam et noxios a mortis exitio satagite cunctos eruere, secundum illud sapientissimi Salamonis: Erue eos qui ducuntur ad mortem; et qui trahuntur ad interitum, liberare ne cesses (Prov. xxiv)

Epistula 97.25***119 PL 991-92.

In the context of capital punishment, the Tradition of Mercy has as much authority as the Tradition of Justice. In viewing capital punishment in the modern context, therefore, we must remember always to incorporate both traditions. We must not forget that there is an order of justice, an ordo iustitiae. But--in particular as Christians whose quality should be always to have mercy, and who ought never to forget the mercy that their heavenly Father has shown them in Christ--we must also not forget that there is an order of mercy, an ordo misericordiae.

To the cry of "injustice!" from a man justly condemned to die, Christians will turn a deaf ear. But to the cry of "mercy!" from a man justly condemned to die, Christians will not. It is in the forum--not of justice, but of mercy--where the sinner, the malefactor will always have an audience.
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*St. Ambrose, Epistola L(XXV) to Studius (Vides igitur quid auctoritats tribuat, quid suadeat misericordia).
**This sentiment is well-expressed by John Henry Cardinal Newman in his Lectures on Certain Difficulties Felt by Anglicans in Submitting to the Catholic Church: "This, then, is the point I insist upon, in answer to the objection which you have today urged against me. The Church aims, not at making a show, but at doing a work. She regards this world, and all that is in it, as a mere shadow, as dust and ashes, compared with the value of one single soul. She holds that, unless she can, in her own way, do good to souls, it is no use her doing anything; she holds that it were better for sun and moon to drop from heaven, for the earth to fail, and for all the many millions who are upon it to die of starvation in extremest agony, so far as temporal affliction goes, than that one soul, I will not say, should be lost, but should commit one single venial sin, should tell one wilful untruth, though it harmed no one, or steal one poor farthing without excuse. She considers the action of this world and the action of the soul simply incommensurate, viewed in their respective spheres; she would rather save the soul of one single wild bandit of Calabria, or whining beggar of Palermo, than draw a hundred lines of railroad through the length and breadth of Italy, or carry out a sanitary reform, in its fullest details, in every city of Sicily, except so far as these great national works tended to some spiritual good beyond them." Its classic expression is found in St. Thomas Aquinas: "The good of the grace of one soul" St. Thomas states in his Summa Theologiae, "is greater than the good of the nature of the whole universe." IaIIae, q.24, a. 3, ad 2.
***Quoted in Megivern, The Death Penalty: An Historical and Theological Survey (Paulist Press, 1997), 47-48. Again, Megivern's bias causes him to overinterpret the Pope's statement. He interprets as a recommendation to do away with the death penalty, which it is not. In fact, he supposes that there may be circumstances where it cannot be helped ("in every possible circumstance"). To be sure, it is a recommendation that the death penalty be, in the words of John Paul II who draws from this tradition in his Evangelium vitae, be imposed only in cases of "absolute necessity: in other words, when it would not be possible otherwise to defend society." (No. 56) Again, whether we draw from Pope St. Nicholas or Blessed John Paul II, the recommendation that the death penalty be minimally applied is not because the death penalty is unjust, but rather because it lacks mercy.

The Papacy and Capital Punishment: Pius XII

OUR LAST WITNESS OF THE CATHOLIC CHURCH'S traditional teaching on capital punishment is Pope Pius XII. Pope Pius XII clearly accepts the traditional teaching on the moral liciety of capital punishment in his public addresses to a variety of groups. Although the form of Pius XII's teaching does not rise to the level of an ex cathedra statement, it remains nevertheless true that it is part of the ordinary teaching of the Church. Certainly, it is consistent with all the other witnesses we have reviewed in a series of postings--the Church Fathers, Popes Innocent I and Innocent III, St. Thomas Aquinas, the Roman Catechism, St. Alphonsus Liguori, and so forth.

For example, in his address to the First International Congress of Histopathology of the Nervous System held in Rome on September 14, 1952, Pope Pius XII discussed the moral limits of medical research and treatment. During the course of his address, Pius XII contrasted the right to life and the benefit of life in the case of a justly condemned criminal:

Even when there is question of a person condemned to death, the state does not take away the 'right' of the individual to life. It is then reserved to the public authority to deprive the condemned person of the 'benefit' of life in expiation for his guilt, after he himself, by his crime, has already deprived himself of his right to life.*

The "right to life" is in a manner of speaking inalienable, as it is given to man by God and not by any human authority.** However, such a right is, in another manner of speaking, something that one can alienate, even if it is God who allows it, through a serious criminal act which causes significant harm to the common good. In distinguishing between the "benefit" of life and the "right" to life, it is as if Pope Pius XII suggests that a justly condemned criminal guilty of a capital offense remains alive only through courtesy of the public authority responsible for the common good, as the benefits of his life, a life which he has forfeit through his crime may, as a result of the power given to the public authority by God, be taken away.

For Pius XII, the imposition of the death penalty was seen as the vindication of the moral order. It is part of the need for retribution, one of the classic reasons for punishment. Indeed, as Pope John Paul restates in his Evangelium vitae, the "primary purpose of the punishment which society inflicts is 'to redress the disorder caused by the offense.'" EV, No. 56. Such vindication or retribution, however, is distinct from vengeance. Indeed, Pope Pius XII clearly taught that punishment primary function was to vindicate the injustice caused by the wrongful act:

It would be incorrect to reject completely, and as a matter of principle the function of vindictive punishment. While man is on earth, such punishment both can and should help toward his eternal salvation, provided he himself raises no obstacles to its salutary efficacy.***

Pope Pius XII stated the traditional teaching of the Church regarding the death penalty in a speech dated March 13, 1943 to the parish priests of Rome:

God ... the fountain of justice reserved to himself the right over life and death. . . . Human life is [therefore] untouchable except for legitimate individual self-defense, a just war carried out with just methods, and the death penalty meted out by public authority for extremely grave and very specific and proven crimes.†

There are other addresses--for example those to the Italian jurists--that could be elicited where it is clear that Pius XII believed, held, and taught that the death penalty imposed upon a malefactor can be, in the proper circumstances, consonant with moral principles and with principles of justice.

The death penalty is supported by the notion of punishment as retribution or vindication of a disrupted moral order. In this regard, Pope Pius XII stated the following:

Up to a certain point, it may be true that imprisonment and isolation, when properly applied, constitute the penalty most likely to effect a return of the wrongdoer to right order and life in the community. But it does not follow from this that imprisonment is the only just and effective punishment. Our remarks on international penal law on October 3, 1953, referring to the theory of retribution apply here. Many jurists, thought not all, reject the concept of vindictive punishment, even when it is to be accompanied by medicinal penalties. In our remarks, we declared that it would be incorrect to reject completely, and as a matter of principle, the function of vindictive punishment. While man is on earth, such punishment both can and should help towards his eternal salvation, provided he himself raises no obstacle to its salutary efficacy. The effectiveness of vindictive penalties is in no way opposed to the function of punishment, which is the re-establishment and restoration of the order of justice which has been disrupted, a function which we have already indicated as essential to all punishment.††

It is this notion of vindication or retribution that explains the justification for imposing the death penalty on a malefactor who seriously disrupts the moral order. The putting of a man to death by public authority is not something immoral; indeed, it may be fully compatible with the demands of justice.

It is repugnant to reason and to the inclinations of mankind to suggest that a serial murderer such as Ted Bundy, a genocide such as Slobodan Milošević, a traitor such as Robert Hanssen, a terrorist such as Timothy McVeigh, may not, in the order of justice, without any moral fault, be put to death. Such as these deserve to die, and they cannot--nor can any on their behalf--claim any injustice should the State put them to death.

But while such as these cannot claim injustice if they are condemned to die and are in fact put to death, they can--until their dying breath--beg for mercy. And the public authority, which has power over their lives, may, and--under the state of affairs of modern society it is the opinion of the Pope and a good many others--in most cases should, exercise mercy. But that is entirely another order, the order of mercy.

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*Pius XII, The Moral Limits of Medical Research and Treatment, An address given September 14, 1952 by His Holiness Pope Pius XII to the First International Congress on the Histopathology of the Nervous System.
**Evangelium vitae, 20, 101.

***Discourse of ***December 5, 1954, AAS, XLVII, p. 67.
†Pius XII, Sulla Osservanza dei Commandamenti di Dio, Ai Parroci ed ai Quaresimalisti Di Roma , Mar. 13, 1943, in Discorsi e Radiomessaggi di Sua Santità Pio XII, Tipografia Poligotta Vaticana, vol. V, p. 197.
††AAS 47 (1955) 81-82:

Capital Punishment and the Church: St. Alphonsus Liguori

IN PRIOR POSTS ON THIS SUBJECT, we have discussed how the Church Fathers--pre-Constantine and post-Constantine, including the redoubtable St. Augustine--, Pope Innocent I and Pope Innocent III, the theologian St. Thomas Aquinas, the canonist Gratian, and the Roman Catechism issued under the authority of the Roman curia and pursuant to the Council of Trent all, without exception, confirm the moral liciety--in the order of justice--of the death penalty for malefactors when applied by the public authority for grave crimes. There is therefore unanimity in the medieval Papal magisterium, theologians, canon law, and doctrinal and pastoral teachings on this issue. To suggest that we are not dealing with an ordinary teaching of the Church infallible and irreformable in nature is temerarious, at best.

In this blog posting we will look at yet another source that confirms this. We will turn to the witness of St. Alphonsus Liguori, Doctor of the Church and Patron of Confessors and Moral Theologians.

St. Alphonsus Liguori

As Thomas Slater, S.J., put it in his A Short History of Moral Theology: "St. Alphonsus Liguori is recognized as the Doctor of moral theology as St. Thomas is of dogmatic." As his fellow Jesuit Fr. John Hardon, S.J., also confirmed:

In moral theology, Alphonsus has no peer. He is the outstanding moral theologian of the Catholic Church. It is not too much to say that he created moral theology as a distinct theological discipline in the Church. His method was mainly what we would call the case method: a problem or a case in moral which he would present very pointedly and clearly, and then resolve the problem and then draw out the principles. What Alphonsus teaches in moral theology, the Church tells us can always be safely followed. Even though others may disagree with Alphonsus, he is a safe guide in moral theology.**

As these Jesuits state in no uncertain terms, St. Alphonsus is obviously no mean authority, and, without very good reasons, we are fools to depart from him.

There is reason for holding the opinion that St. Alphonsus de Liguori is a strong authority in the area of the Church's moral teachings. Not only was he a Roman Catholic bishop, he was a canonized saint, displaying heroic sanctity and fidelity to orthodox teachings, especially in the area of morality. Moreover, was declared a Doctor of the Church precisely because of his teachings on moral theology, and indeed declared patron saint of confessors and moral theologians, suggesting that the Church finds him in some form superlative in this area. Moreover, the Holy Penitentiary during the papacy of Gregory XVI, held, in a response dated July 5, 1831, that the opinions of St. Alphonsus in matters of morals were trustworthy and so professors of moral theology could "quietly [that is, safely] follow and teach" the opinions of this teacher without fear of falling into moral error. He has consistently been held in high regard by the Papacy. DS 2725-27. As Michel Labourdette put it in the Revue thomiste:

Many times praised and recommended by the Sovereign Pontiffs, and again recently by His Holiness Pius XII, Saint Alphonsus remains a Master omni exceptione major. . . . No theologian can afford to ignore in resolving a concrete case what Saint Alphonsus thought. His authority is so great, so authentically established, that . . . it comprises one of the"common principles" to which it will always be permissible for a confessor to appeal when seeking a way out of doubt.

Granted, none of this means that his teachings are infallible; after all, he did not enjoy the charism of infallibility. But at the very least, he is an important representative of the sensus ecclesiae or the sensus fidei. You would have to have a very good reason to contradict the teachings of St. Alphonsus, especially in those areas where he is supported by Tradition.

In his great work, the Theologia Moralis, we find the following short treatment of the Fifth Commandment, "Thou shalt not kill":

Doubt II
Whether, and in what manner, is it lawful to kill a wrongdoer
376. Whether it is lawful for proper authority to kill a criminal?
376.—Response: Other than the case of necessary defense, of which more below, no one except public authority may lawfully do so, and then only if the order of the law has been observed, as is made clear in Exodus 22 and Romans 13.
. . . . The public authority is given the power to kill wrongdoers, and that not unjustly, since it is necessary for the defense of the commonwealth. (Killing may not be done outside of the criminal’s territory, neither is it presumed that another prince has this right.) They also sin who kill not out of the zeal of justice, but out of hate, or private vengeance. Vide Laym l.c. Similarly, a prince or magistrate sins (normally speaking) see below l. 4. C. 3. D. 1, who orders a wrongdoer to be put to death without being properly cited, or heard, or adjudged (by public trial), even it if he has personal knowledge of that person’s guilt, because as a matter of natural law, a public act ought to be derived from public knowledge and authority. There is an exception to this rule if: (1) the crime is notorious, or (2) if there is a danger of sedition, or the King’s disgrace, if the cause proceeds juridically.

Dubium II
An, et quomodo liceat occidere malefactorem.
376. An liceat occidere Proscriptos propria auctoritate? . . . .
Resp. Extra casum necessariae defensionis, de quo infra, nulli id licet, nisi auctoritate publica, et juris ordine servato, ut patet Exod. 22 et Rom. 13.
. . . Secus est de proscriptis quos occidendi cuius acutoritas publica datur: idque non injuste, cum ad Reipublicam defensionem sit necessarium. (Modo occisio non fiat extra territorium proscribentis: nisi praesumatur licentia alterius principis. Sal. De V Praec. C. 2 n. 19 Vide. n. 380. Vers. Decius) Peccant tamen qui no ex zelo juistitae, sed odio, aut privatae vindicate causa id faciunt. Vide Laym. l. c. Peccat Princeps, vel Magistratus (regulariter loquendo) ut vide infra l. 4. c. 3 d. 1 qui occidi juebt reso non citatos, vel no auditos, vel non damnatos, etsi privata scientia conste eos esse nocentes; quia ex jure naturae actus publicus fieri debet ex scientia et auctoritate publica. Vide Caj. V. Homicidium, Fill. Tr. 29. C. 2 q. 6 n. 27. Bon. L.c.p.1 n.7 Vide et infra l.4.c.3.d.1. (Excipe 1. Si crimen set notorium. 2. Si esset periculum seditionis, aut esset dedecus Regis, si juridice procederetus. Salm. Ibid. num. 18)

This was his formal teaching, and it is rather succinct and curt, surely because this teaching was so well known that no one would even bother to contest it. This position was hardly controversial. As Brugger expresses it, St. Alphonsus Liguori's teaching on capital punishment "is typical for its measured rearticulation of the Church's traditional teaching."***

To his credit, Brugger is honest in his treatment of St. Alphonsus and the teaching contained in the Theologia Moralis. He could recruit him for his particular viewpoint of Evangelium vitae,† but he does not. As he explains:

When Liguori teaches that criminals may be killed "if it is necessary for the defense of the republic [idque not iniuste {occidere proscriptos} cum ad reipublicae defensionem sit necessarium] he appears to be using the principle of "necessity" as it is used in the Catechism of the Catholic Church and Evangelium Vitae. But his further statement that "beyond the cause of necessary defense, it is never licit [to kill malefactors], except by public authority and in order to preserve the order of law" [nisi auctoritate publica, et juris ordine servato] makes a distinction between "necessary defense" as self-defense (as in the Catechism, no. 2267) and the killing necessary for "preserving the order of law."

Brugger, 124-25.

In other words, St. Alphonsus does not limit the moral or just application of the death penalty by private authority to instances where it is necessary in the manner that it would have to be necessary for a private individual to justify killing another in self-defense. The notion of "necessity" when it comes to the public authority's defense of the common good is much broader than the notion of "necessity" required to justify deadly force against an unjust aggressor.

In his Instructions for the People, a sort of concise and more popular version of his magnum opus, the Theologia Moralis, St. Alphonsus addresses those "causes" which permit the killing of another person. St. Alphonsus identifies only three causes that "render it lawful to take away the life of man: public authority, self-defense, and a just war."

With respect to his treatment of the death penalty, St. Alphonsus expands as follows:

It is lawful to put a man to death by public authority: it is even a duty of princes and of judges to condemn to death criminals who deserve it; and it is the duty of the officers of justice to execute the sentence; God himself wishes malefactors to be punished.

Per l'autorità pubblica è ben lecito, anzi è obbligo de' principi e de' giudici di condannare i rei alla morte che si meritano, ed è obbligo de' carnefici di eseguire la condanna. Dio stesso vuole che siano puniti i malfattori.

Here, St. Alphonsus ascribes an affirmative duty to the public authority to condemn to death and execute criminals who are guilty of capital offenses.

Of course, St. Alphonsus Liguori is just one of literally scores of moral theologians which, either relying upon him or independently relying on the Magisterial, theological, patristic, scriptural, or natural law sources all held--in virtual unanimity--that the public authority could, in proper instances and with proper purpose, put a malefactor to death without falling into any mortal sin or moral fault.†† It is impossible in light of this witness for the Church to hold that capital punishment is per se evil, and that the State has no authority given to it by God, to put a malefactor to death and not infringe upon the demands in justice. Indeed, justice may in fact demand it.

__________________________________
*Rev. Eugene Grimm, ed., The Complete Works of Saint Alphonsus de Liguori, Vol. XV, "Instructions on the Commandments and the Sacraments" (New York: Benziger Brothers, 1890)I.V, p. 462
**John A. Hardon, "History of Religious Life: St. Alphonsus Liguori and the Development of Popular Piety" accessible here.

***E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (Notredame University Press, 2003), 124.
†As quoted in Théodule Rey-Mermet, Moral Choices: The Moral Theology of Saint Alphonsus Liguori (Paul Laverdure, trans.) (Liguori Publications, 1998), 78.
††Brugger's argument is that Pope John Paul II's encyclical Evangelium vitae set up the possibility of the Church teaching that capital punishment is per se evil. He argues that the encyclical teaches that the only justification for capital punishment--in the order of justice--is self-defense, i.e., it being necessary for the defense common good. I strongly disagree with Brugger's position because he finds too much discrepancy between the Tradition and Evangelium vitae, and he seeks to supplant the former with the latter instead of trying for a true reconciliation of what is only an apparent contradiction. He also, in my mind, confuses the order of justice with the order of mercy.
†††Eighteen exemplars of these are indicated in Brugger, foonote 95, p. 228, and with a little bit more effort he could have found dozens more. He is honest about their unanimity: "The first thing a reader notices in these works is the overwhelming consensus on the morality of capital punishment."

Capital Punishment and the Church: The Roman Catechism

IT IS INCONCEIVABLE THAT AN OFFICIAL Catechism of the Catholic Church, especially one geared toward the instruction of priests, would contain fundamental error. Until the recent Catechism of the Catholic Church, the Catechism of the Council of Trent or Roman Catechism enjoyed preeminence as a summary of Christian teaching. Those who suggest that the Catholic Church's Magisterium could declare capital punishment in all cases violates justice and is a mortal sin would essentially be calling into question every moral teaching of the Church. To suggest that capital punishment is a malum in se, an intrinsic evil, would be to overturn two millenia of Church teaching; rather, the Tradition has always regarded capital punishment, justly applied within the rule of law, to be a moral and just punishment for malefactors guilty of serious wrongdoing against the common good.

St. Charles Borromeo
who proposed, and had a role in,
developing the Roman Catechism

The Roman Catechism or the Catechism of the Council of Trent (Catechismus ex decreto Concilii Tridentini ad Parochos) handles the issue of the Fifth Commandment's prohibition against killing. The purpose of this commandment, states the Roman Catechism, is "to protect the life of each one." The words of the Fifth Commandment "emphatically forbid homicide." It is an absolute, exceptionless norm.

In explaining the commandment, the Roman Catechism excludes from its auspices brute animals, as these "form no part of human society." It also excludes killing in a just war; consequently, a "soldier is guiltless who, actuated not by motives of ambition or cruelty, but by a pure desire of serving the interests of his country, takes away the life of an enemy in a just war." Killing by accident, by ignorance of fact, "without intent or design," is likewise an exception to the rule in that it "involve[s] no guilt whatever." Similarly, killing in self defense, "having used ever means consistent with his own safety to avoid the infliction of death" does not constitute a violation of the divine injunction not to kill.

The Roman Catechism also excludes from the scope of the Fifth Commandment the execution of criminals. It states that this is an example where "life may be taken without violating this Commandment." Specifically, the Roman Catechism states:

Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment­ is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.

Alterum permissum caedis genus est, quod ad eos magistratus pertinet, quibus data est necis potestas, qua, ex legum praescripto, iudicioque in facinorosos homines animadvertunt, et innocentes defendunt. Quo in munere quum iuste versantur, non modo ii caedis non sunt rei, sed huic divinae legi, quae caedes vetatur, maxime obediunt. Quum enim legi huic finis is propositus sit, ut hominum vitae, salutique consulatur: magistratuum item, qui legitimi sunt scelerum vindices, animadversiones eodem spectant, ut audacia et iniuria suppliciis repressa, tuta sit hominum vita. Quare David: "In matutino," inquit, "inteficiebam omnes peccatores terrae, ut disperderem de civtitate Domini omnes operantes iniquitatem."

(Roman Catechism of the Council of Trent, 1566, Part III, 5, n. 4)

Surely this teaching is of no less magnitude than the teaching found in the modern Catechism of the Catholic Church. After all, to follow St. Vincent of Lerins, the Faith is what has been believed everywhere, always, and by all [quod ubique, quod semper, quod ab omnibus creditum est], and so we may believe that the same Faith underlies the 16th century Roman Catechism with the 20th century Catechism of the Catholic Church. Though we may not begrudge development in the span of five centuries, we certainly will not entertain contradictions.

In fine, the teaching of the Roman Catechism must be reconciled with the teaching of the Catechism of the Catholic Church. It will not do to have one contradict the other.