This essay is part of our collection on the legitimacy of capital punishment. See the full collection here.
This month’s reformulation of the Catechism of the Catholic Church no. 2267 is described by the Prefect of the Congregation of the Doctrine of the Faith (CDF) as a “development of doctrine.” In truth, however, it does no more than rhetorically emphasize a doctrinal development initiated by Pius XII (more on that tomorrow) and made by John Paul II. That development still awaits a sufficient clarification and stabilization.
The Catechism (CCC) was published first in 1992 (in French) and in English translation in 1994, and then repromulgated, with 103 passages amended, in 1997. It dealt and deals with capital punishment in a firm, unchanging framework: the Fifth Commandment (2258–2330); respect for human life (2258–83); legitimate defense (of self and others) (2263–7). The 1992/4 treatment of legitimate defense was in its central two paragraphs (2265–6) confusingly formulated, running together forcible defense (private, police, or military) with punishment. That confusion was sorted out in 1997. Nos. 2263-4, on basic principles, remained and remain intact. The major development of doctrine inherent in them is considered below. (See all the relevant texts of 1994, 1995 and 1997, set out by Germain Grisez for an appellate judge.)
The whole of no. 2267, on capital punishment, had been quoted in the 1995 encyclical Evangelium Vitae (EV), sec. 56, and reaffirmed as a “principle [that] remains valid”:
[2267/92/4] If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should [EV 56: must] limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.
That was all retained in 2267/97; although the English shifted from “should” to “must” to “will,” the French, Italian, Latin etc. kept to the same preceptive phrasing throughout: “authority is [morally required] to limit itself.”
And, to anticipate: the whole doctrinal content of the 2018 revision is already expressed in that sentence, just quoted, of CCC 1992/4 and 1997 and EV 56.
But, to finish recounting this brief textual history: CCC 2267 was in 1997 expanded with a preface and a fact-premised conclusion (each derived from EV 56). Preface: “. . . the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.” Conclusion: the state “today” can render the offender “incapable of doing harm—without definitively taking away from him the possibility of redeeming himself,” and “as a consequence,” the cases in which execution is the only possible way of effectively defending human lives are “very rare if not practically non-existent.”
So what the 2018 revision does is this. CCC 2267/92/4 taught that non-capital punishments are “more in conformity to” human dignity, and 2267/92/4 and 2267/97 each taught that capital punishment is therefore (i.e. for the sake of human dignity) not to be used—you might say, is inadmissible—unless a precondition is satisfied: that it is here and now absolutely necessary to protect (from this particular offender) lives, safety, and public order. CCC 2267/18 comes in to declare that that precondition is not now satisfied, because of (1) today’s increasing awareness that even the worst criminal’s dignity is not lost, (2) today’s newly emergent understanding of the significance [It. senso; Lat. sensus; Fr. sens: meaning] of state penal sanctions (as explained by the CDF, these sanctions look more and more to possible rehabilitation), and (3) today’s more effective detention systems, ensuring due protection of citizens without definitively depriving the guilty of possible “redemption.” Consequently:
Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.” [citing Francis, 11 October 2017]
One seriously distorts the meaning and content of the revision if, whether with joy or alarm, one quotes only its final sentence and, worse, omits from that the word “Consequently.”
In short: the 2018 revision offers a teaching only about the circumstances (currently widespread attitudes and institutions) of today. It really goes no further than John Paul II in 1992 toward judging that—leaving out of account, here and throughout, any particular special divine commandment to some person or group—capital punishment is intrinsece inhonestum, inherently impermissible. Whether or not the moral permissibility of some possible or historical instances of state capital punishment has been definitively taught (that is, infallibly taught in one or more of the three possible ways articulated in Lumen Gentium 25) —a question I take up tomorrow—the 2018 revision does not contradict it.
I turn now to a consideration of the steps that John Paul II did take, in 1992, toward teaching that it is inherently impermissible. But before leaving the 2018 revision, which I will revisit at the end of tomorrow’s essay, it is worth saying a word about two phrases in its key sentence, just quoted.
The phrase “it is an attack” is not, in context, making any point about the intentions involved in capital punishment. (The Italian original is attenta al, better translated by the French blesse [wounds], the Latin repugnet [opposes], the German sie gegen [goes against, is opposed to] . . . a way of speaking more about effects or implications than about the intention.) Nor does the phrase convey any assertion about capital punishment’s “admissibility” under conditions different from “today.”
The phrase “in the light of the Gospel” invites the question which parts of the Gospel and what precisely they make visible. The answer suggested below will point to two things. One is the status (dignity, rank, worth) of every human individual as unconditionally the object of God’s conditional promise of new creation (a status closely studied, verified, and emphasized in EV 7 through 55). The other is the high moral significance of an action’s intention (precise object) as shaped in the inner deliberations (see Mark 7:15, 21) of acting persons including state officials.
The Real Development of Doctrine: CCC 2263-5 and 2307
The Catechism’s section on “legitimate defense,” the section that ends with capital punishment, begins with no. 2263. This opens with a confusingly worded sentence dealing both with “the murder of the innocent” and “intentional killing.” The sentence’s meaning and thesis is then made clear by the sentence following it, a quotation from Aquinas’s famous statement that private persons’ defense of themselves can “have a double effect: the preservation of oneself and the killing of the aggressor . . . the one is intended, the other is not.” Aquinas makes it explicitly clear, and CCC 2263 takes for granted, that such self-defense is morally permissible only if it includes no intent to kill, even when the means used to repel the aggression are known to be lethal.
Now Aquinas, in the same article, goes on to say that public officials (police, military, judges, etc.) can permissibly act against aggressors or criminals with, if need be, intent to kill them. But this part of Aquinas’s teaching, long accepted in the tradition, is implicitly but unambiguously rejected by the Catechism. CCC 2263-65 extend the moral exclusion of intention to kill (even when using very lethal weaponry) to all instances of legitimate defense, including the actions of “those holding legitimate authority” exercising “the right to repel by armed force aggressors against the civil community.”
All this is confirmed by no. 2307, which heads up the section devoted to just war:
2307. The fifth commandment forbids the intentional destruction of human life. . . .
2308 . . . governments cannot be denied the right of lawful self-defense . . .
2309 . . . The strict conditions for legitimate defense by military force require rigorous consideration . . .
Evangelium Vitae’s discussion, in sec. 56, unfortunately does not consider the preconditions and limits of morally permissible legitimate defense of self or others, except to say that when “the need to render the aggressor incapable of causing harm . . . involves taking his life . . . the fatal outcome is attributable to the aggressor … even though he may not be morally responsible because of a lack of the use of reason.” Leave to one side the dubious “attribution.” EV 56 is here indicating the important point that the right of legitimate defense is about repelling what is causing or likely to cause harm (nocere), and those who are causing or likely to cause such harm are harming (nocens), and so they are not non-nocens (not—in this sense—innocent), for the purposes of the commandment “Do not kill the innocent.”
Evangelium Vitae left intact the Catechism‘s remarkable adjustment of the tradition, its elimination of any permissible difference between private persons and public officials in relation to permitted intention: no intentional killing, no intending to kill, not even while deciding upon or carrying out, as one permissibly may (and as is often morally required), the lethal, forceful, violent measures reasonably judged to be needed to stop evil criminals in their crimes or enemy forces (which may include unwilling—and in that sense subjectively innocent—conscript soldiers participating under duress) in their unjust operations (aggression) against one’s country.
It is this wide and rigorous teaching—about respecting all human life in one’s intentions—that is then applied to capital punishment in the way that we have seen is essentially constant from 1992 to today. That application has attracted much publicity and anxious attention. But of vastly greater practical significance in itself is the wide teaching summed up in no. 2307, applying as it does to training and conduct of armed forces, police or military. Yet how many people who welcome, or who deplore, the teachings on capital punishment of John Paul II, and the essentially similar teachings of Francis, are even aware of their wider teaching that excludes intent to kill from all police and military deliberations and choices of action?
This whole set of teachings, in all formulations, is based—as its context in the unified section 2263-2269 on legitimate defense (as clarified or confirmed by 2307) makes clear—on two foundations: (A) the fundamental good and “sacred” status of the life of each and every human being; and (B) the reality and significance of the distinction between effects one intends and effects one does not intend but knowingly causes as a side effect (hence “double effect”) of carrying out what one does intend. These are foundations that have emerged in the manner mentioned in EV 2 and 28 and described in EV 55: “Christian reflection has sought a fuller and deeper understanding of what God’s commandment prohibits and prescribes. [fn: Cf. . . Catechism Nos. 2263-2269 …].”
In examining these foundations in turn, we are not looking at a corrupting of Catholic thought and tradition by secularized sentimentalism (as some critics understandably suppose). We are, rather, looking at a closer and closer attention to the tradition’s principles of faith and morals, and to what these principles require in cleansing of the heart, and in steadily pursuing understanding.
The Sacredness of Each Human Life
Sacredness is predicated of every human life, not as pious rhetoric, but as summarizing a doctrine: God alone is the lord of life and death.
The doctrine heads up the paragraph (Gaudium et Spes 51.3) in which Vatican II lent its weight to the Church’s age-old, indeed apostolic teaching against abortion, infanticide, and contraception. “For God, the Lord of life, has entrusted to men and women the pre-eminent ministry of safeguarding life in a manner worthy [digno] of man.” Of course, a life about to emerge—that naturally will begin unless I do something to prevent it—is greatly different from a life already in being, and Paul VI in Humanae Vitae soft-pedaled the contraception is contra-life rationale of Christianity’s perennially double-rationaled teaching against contraception, highlighting rather the contraception is contra-marriage, the marital chastity rationale. Soft-pedaled, but did not overlook: the lordship of God over life even in its initial inception is quietly asserted in the encyclical’s very first sentence, and then is spelled out, referring also to human life’s sacredness, in the second paragraph of HV’s key central section about what is wrong with contraception (no. 13).
And the evidence emerging, still very fragmentarily, from the Holy See’s archives, suggests that in the crucial four months from June 27, 1966—between Paul VI’s receiving his Commission’s report firmly recommending acceptance of contraception, and his public announcement that he had judged that report unsound—it was the critique prepared by Fr. John Ford, SJ, and Germain Grisez for Cardinal Ottaviani to give to the Pope early in July, a critique repeatedly emphasizing God’s lordship over human life, that was most persuasive in helping Paul VI to see his way (against vast tides of public opinion and intellectual fashion) to that judgment and announcement.
The sole and absolute lordship of God over human life and death is then emphatically thematized in CCC 2258, 2318-9, and in Evangelium Vitae: see secs. 39, 46, 47, 52 (also citing HV 13), 53, 55, and 66. As EV 53 puts it: “God proclaims that he is absolute Lord of the life of man . . . Human life is thus given a sacred and inviolable character . . .” EV 39 roots the doctrine in Deuteronomy 32. 39; CCC 2318 in Job 12. 10. Aquinas gave prominence (Summa Theologiae [ST] I-II q. 100 a. 8 ad 3) to the formula Deus dominus vitae et mortis: God is the Lord of life and of death.
As Ford and Grisez noted for Paul VI, dignity is a necessary but never a sufficient ground for the natural (and Christian) moral truths about killing; it is sanctity of life—God’s sole lordship over the passage from life to death—that is needed (and available, even in unaided natural reason at full stretch) as premise for the exclusion of autonomous acts of suicide and voluntary euthanasia. So, as the twentieth-century Church had to face up to ever more insistent calls to legitimize these options, it had to deepen its appropriation and understanding of the moral implications of both the unpopular truth that each and every human being was at his or her very origin the object of a special act of creation (“ensoulment”) by God, and the truth, more popular but sadly often taken lightheartedly or for granted, as if unconditional, that each human being thus summoned into life is a creature so significant that God has prepared for him or her a place in His kingdom and a sharing in His divine life.
Intentionally Terminating Life vs. Knowingly Causing Death
Catholic tradition, as articulated by Aquinas, judged it intrinsically (and thus exceptionlessly) immoral for me to form an intention to kill while defending myself or others against an aggressor, but also judged it morally permissible for public officials to act on such an intention while defending the common good by suppressing serious crime, administering just penalties, and so on. It is crucial to see that the Catechism, as stressed above, replaces and reverses the second judgment by extending the judgment about private intentions to kill defensively so that it now covers also public officials acting in the course of their duties. This extension exhibits high confidence in the practical possibility of carrying out the lethal operations needed for defense of the common good without precisely intending their lethality.
Though none of us—nor anyone else guilty of supporting “New” Natural Law Theory—had any part at all in the preparation of any of the moral parts of the Catechism, Grisez, Joseph Boyle, and I, jointly and severally (most recently in my Aquinas pp. 286-7), have published explorations of that possibility. And we have defended the new position against the initially plausible-sounding criticism that it necessarily involves what Elizabeth Anscombe’s early writings rightly ridiculed as phony “direction of intention,” or double-think rationalizations about intention. Against that criticism, we have argued, stands Anscombe’s own utterly sound analysis and explanation of intention as a psychological reality—very fine-grained—and real element of honest deliberation and choice: the adopting (by choice) of a proposal one has shaped for oneself (in one’s deliberations) as a set of means of achieving the end or ends for the sake of which the proposal is shaped and adopted. (Every means and end in the adopted proposal is intended: see Reason, Morality and Law, pp. 480-98) So I say nothing more about any of this here.
Here what is relevant is the Church’s intense focus, over the past 150 years, on issues involving the distinction between what is intended and what is caused and accepted or permitted without being intended. That focus has been intensified as western culture has drifted further and faster away from Christian norms, and challenged more and more fiercely their justifiability. The difference between terror-bombing civilians and legitimate bombing of military targets located in civilian areas; between legitimately refusing medical treatment and committing suicide or requesting euthanasia; between contraception and periodic abstinence; between formal and material cooperation in moral evil; between abortion and justifiable therapies causing termination of pregnancy and loss of the unborn child, etc. These and other neuralgic, high-profile issues have called for deeper, more transparent identification of what precisely it is to form, have, and act upon an intention.
Moreover, proportionalist moral theologies, condemned (under the name “teleologism”) in Veritatis Splendor, blandly but pervasively reject the relevance of intention, in the sense in which it is in play here, particularly as the precise object of the chosen action. So the attaining of clarity about why proportionalism must be rejected has required, again, close attention to intention’s reality, boundaries, and high moral relevance. (The proportionalist method of ethical decision-making proposes that the right thing for someone to do when facing a morally significant choice is: choose the option that promises the net best proportion of benefit to harm overall and in the long run. It is one of that family of methods of ethical judgment that Anscombe, in rejecting them, labelled “consequentialism.”)
Combining the Church’s sharpened understanding of intention’s content and reality with the Church’s deepened awareness of God’s unique lordship over life and death, the Catechism pronounced the Church’s developed judgment: the true moral content of the Commandment “Never kill the innocent” is: “Never form or act upon an intention to kill a human being, though you may and often should defend yourself and/or others—even when that needs means you know or expect to be lethal—against persons who are nocens in the sense that, without justification (even if morally inculpably), they are causing or about to cause grave harm.”
Now that wide judgment, combined with Aquinas’s commonsense judgment that capital punishment has as its object (= immediate intention) the death of the convict, seems indeed to entail that capital punishment too—accurately understood as punishment (i.e. as executing the offender for primarily retributive reasons) rather than defense against imminent attack—offends against the Commandment, that is, violates that respect for human life (and therefore human dignity) that is required of everyone, private or public, because to intend to kill is to treat oneself as having a lordship over life and death that is God’s alone.
The Catechism, even as revised in 2018, stops short of drawing that conclusion. But it is appropriate to take up a question that, while thus not urgent, certainly remains quite relevant. Could the proposition that capital punishment inherently offends against the Fifth Commandment (and the equivalent precept of natural moral reason and law) be adopted and taught consistently with—as an authentic development of—past Church teaching about capital punishment?
This topic will be picked up in the second part of this two-part series, available here.