Dr. Raphael Waters

The Church on Capital Punishment

“Even when it concerns the execution of a man condemned to death, the state does not dispose of the individual’s right to live. It is reserved then to the public power to deprive the condemned man of the benefit of life, in expiation of his fault, when already, by his crime, he has dispossessed himself of the right to life.” – Pope Pius XII

“The traditional doctrine of the Church is that capital punishment is not opposed to the divine law … A Catholic may not state that the application of the penalty is a violation of the natural law” – Dictionary of Moral Theology

2015 Intro: It appears a number of influential Catholics seem intent on asserting the death penalty is contrary to the Law of God. This assertion is not true. The late Dr. Raphael Waters (d. 2010), eminent professor of Thomistic Philosophy, and an expert on the topic of the Death Penalty, in this 2002 article, presents a compendium of Scripture and Church teaching on the issue.

Introduction

One of the more serious developments in the anti-intellectualism of our times is the increasing opposition to the death penalty. The errors associated with this attitude are surprisingly widespread among Catholics, who, while misquoting the Bible as well as Pope John Paul II, have raised the negative attitude associated with the penalty almost to the level of a dogma.

It is disturbing that one may speak of Catholic political correctness at present as opponents of the death penalty claim that “it is against the law of

God.” Certain other statements have been cause for concern amongst Catholic scholars giving rise to confusion in the minds of many. For example: “The Bishops have condemned it,” a claim made without proper distinction. “The Pope [John Paul II] has condemned it.” “One cannot be a Catholic and accept capital punishment.” “If you accept capital punishment, you cannot be baptized into the Church.” “You cannot vote for Governor George Bush because he stands for capital punishment.”

Apart from moral philosophy, the science which concerns the death penalty, moral theology, a science based on revealed principles, confirms the conclusion of the philosopher and the science of ethics, which is based on rational principles, that capital punishment is not intrinsically evil.[1] If both of these sources of moral wisdom leave us with a conclusion, it is a foolish man who would reject it without at least examining the evidence.

Other disciplines, such as political science and various social sciences, being empirical sciences, whose principles are observable phenomena, deal with what is (what is common) and not what ought to be. For one cannot observe the ‘ought.’ One observes that which is (what appears to the senses here and now). Hence, it is left to the practical ontological sciences to deal with what ought to be, namely, moral philosophy and moral theology.

It should also be made clear that our concern is with the morality of the death penalty, not with the prudential judgment concerning its application. Our concern here is whether or not capital punishment is an evil means of protecting the common good or if it is compatible with the true moral order.

Flawed thinking could perhaps be expected in the light of the decline of scholarship, studies in systematic theology, and apologetics, all of which seem to have given way to Bible studies. The latter supposes an attitude more characteristic of Protestant theology, which allows private interpretation often resulting in opposing views of some issue. One could readily understand the opposition to the death penalty if based upon sympathy for another human person, were it not for the poor reasoning behind the opposition. The dependence on a mere physical description of execution (an appeal to the imagination), likening it to an act of murder

demands a return to reason and a consideration of rational principles. A reconsideration of the issue of capital punishment is urgently needed and especially from the viewpoint of Catholic teaching.

In reply to all those who deny Catholic teaching, we should proceed by posing the following question:

Does the Catholic Church condemn capital punishment as an immoral sanction?

The following statements reflect the teaching of ecclesiastical authorities and theologians only and are not intended to be an exhaustive treatment of the topic of the death penalty. However, these sources are most enlightening.

A: Teaching of the Bible

There is much evidence within the sources of the Church, which supports the conclusion that capital punishment can be licitly employed by civil authority. The Church’s book, the Bible, should have some priority in our examination of the sources of Christian truth for it is here that many Christians seek justification of their opinions rejecting the death penalty. But the evidence does not justify their claims.

Old Testament

According to research undertaken by Fr. David Nuñez, the Old Testament contains at least 55 justifications of the death penalty.[2] It should also be noted that the Latin (‘non occides’) correctly signifies “Thou shalt do no murder.” This is quite evident from the context.[3]

Immediately after the commandment prohibiting murder several warnings are given against certain crimes for which death is the prescribed penalty.

For example: in Exodus 20:1 3, we are told that “Thou shalt do no murder.” Then in the following chapter the distinction between death as an act of injustice and death as a penalty is made clear for we are told that there are certain evil actions the penalty for which should be death.

Further warnings are as follows: Exodus 2l:12:”He that striketh a man with a will to kill him, shall be put to death.” Exodus 22:18:”Wizards thou shalt not suffer to live.” (Cited by St. Thomas Aquinas as theological evidence for his position.[4]) Genesis 9:6: “Whoever sheds the blood of a human, by a human shall that person’s blood be shed.” Numbers 35:16: “… the murderer shall be put to death.” This is repeated in verses 18, 30 and 31; Numbers 35:19-21: Other examples of whose deeds causing the death of another innocent person follow.

Since some have argued that the Old Testament is out of date and has been replaced by the New Testament, we are tempted to ask if this applies to the Decalogue also.

New Testament

Note the following: “In the New Testament, our Lord recognizes that the power of a judge to sentence to death comes from above (John 19:10),” according to McHugh and Callan.[5] Romans 13:4: “Let every person be subject to the governing authorities; for there is no authority except from God … if you do what is wrong, you should be afraid, for the authority does not bear the sword in vain! It is the servant of God for your good.” See also: Matt. 15:4; Acts 25: 11; Apoc. l3:10.

Although Christ spoke out against every major evil act (crime, sin), yet not once did he condemn capital punishment even though He suffered from it unjustly. He did utter a warning not to give punishment undeserved by the crime. In other words, let the crime be the measure of the punishment. For He quotes Exodus: “Eye for eye, tooth for tooth, hand for hand, foot for foot” (Matt. 5:38; cf. Exodus 21:24). This is the Law of the Talion (Latin, Talis = such)

Some claim that no man has the right to take the life of another human, yet when pressed on the matter of self-defense, the reply is usually, “It is his life or mine”. In other words, suddenly it does not appear to be immoral to take the life of another human person! However since man is the proper subject of authority,[6] and, since this authority is delegated to the civil authorities who exercise the task of societal self-governance on behalf of the members of the community and as God’s minister,[7] therefore, in the absence of those who legitimately hold the executive rights, the man defending himself at that moment represents those same civil authorities in taking the life of his attacker. If the government does not have the right, then neither does the individual defenders.[8]

B: Teaching of the Popes

There appears to be no evidence that any authority within the Catholic Church has officially condemned the death penalty as intrinsically evil.

While the morality of execution is being questioned, more frequently the application is viewed as an impossible task on account of the defective penal system. This condemnation of that system stands in contrast with the reasons proposed by John Paul II who notes the progress towards perfection of that same system. One could say that he had in mind the better conditions of the prison system rather than the penal system in general. However, some consider that the facts do not seem to support this opinion.

It should be noted in passing that John Paul II stated long ago that a political opinion is not binding when he said: “It goes without saying that part of the responsibility of pastors is to give careful consideration to current events in order to discern the new requirements for evangelization. However, such an analysis is not to pass definitive judgments, since this does not fall per se within the Magisterium’s specific domain.”[9]

On the other hand, while there is no Pope who has denounced the death penalty as immoral, several Popes have defended its legitimate use, either implicitly or explicitly. Each of these became progressively clear about taking human life in the right circumstances. They have seen the terribly destructive effects of the actions of some persons on society, which is so fragile and can be destroyed by the machinations of evil men.

However, the teaching of the Popes, as well as their interpretations, takes precedence over all these evidences from Catholic sources. Hence, it would be well for us to examine the declarations of the Popes. Furthermore, we should remember that the Popes are speaking about a matter of morals and they do know what they are talking about in matters of faith and morals. Is this not where infallibility lies? Yet, even though infallibility is not involved here, we should listen to the Popes. The following should be examined in this light:

1. Pope Innocent I, [405 AD] taught, “It must be remembered that power was granted by God [to the magistrates], and to avenge crime by the sword was permitted. He who carries out this vengeance is God’s minister (Rom. 13:1-4). Why should we condemn a practice that all hold to be permitted by God? We uphold, therefore, what has been observed until now, in order not to alter the discipline and so that we may not appear to act contrary to God’s authority.” (Epist. 6, C. 3. 8, ad Exsuperium, Episcopum Tolosanum, 20 February 405, PL 20,495)

2. Innocent III, in 1210, speaking out against the Vaudrois, in order to correct their erroneous position, obliged them to renounce their teaching. Contained in his statement was the following: “concerning secular power, we assert that a judgment of blood [the death penalty] can be exercised without mortal sin, while the secular power proceeds towards bringing down vengeance [not revenge], not from hatred but from judgment, not carelessly but after consideration” (Denz. 425).

3. In 1891, Pope Leo XIII, while condemning the practice of dueling, recognized the right of civil authorities to impose the death penalty (Denz. 1939).

4. Pope Pius XI, citing St. Thomas Aquinas,[10] implicitly manifests his approval of the death penalty when he says that “according to human judgment a man should never be condemned without fault of his own, to an inflictive punishment, such as death, mutilation or flogging” (Denz. 2246).

5. The clearest statement up to his time was made with remarkable precision by Pope Pius XII:

6. There is the more recent statement by Pope John Paul II in his encyclical letter The Gospel of Life, which deals with life issues more fully and with admirable clarity, while rejecting the death fanaticism rampant in our day. Much emphasis is placed by some on certain aspects of The Gospel of Life while neglecting another critical statement approving the death penalty is permissible.

Others indeed have misquoted John Paul II, who quoting the Catechism, stated that, “…legitimate defense can be not only a right but a grave duty for someone responsible for another’s life, the common good of the family or of the state. Unfortunately it … sometimes involves the taking of his life” (n. 55).

He explained that, “The primary purpose of the punishment which society inflicts is ‘To redress the disorder caused by the offense’” (n. 56). Here the Pope expresses the same idea as the Catechism of the Catholic Church, n. 2266, informing us that “there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even abolished completely” (n. 56).

Further on, His Holiness points out that “Today, however, as a result of steady improvements in the organization of the penal system, such cases are rare, if not practically non-existent” (n. 56). These words have been misconstrued by some as if they signify that the Pope’s intention is to stand in complete opposition to the capital punishment in principle. It should be stated that to make such a prudential judgment that the death penalty is not needed in this age is not the same as stating that this death penalty is immoral. This appears to be implicit in the American Bishops’ statement when they say, “Allowing for the fact that Catholic teaching has accepted the principle that the state has the right to take the life of a person guilty of an extremely serious crime, … the question and judgment and decision today is whether capital punishment is justifiable under present circumstances.”[12]

Since this has appeared, there have been statements made by some members of the Church claiming that the supreme penalty should be abolished.[13] This opinion, a political opinion has gradually drifted in the minds of many to the understanding that it is gravely immoral. In the classroom, this viewpoint is constantly brought up especially from those specializing in criminal justice, political science and religious studies.

7. Several other Popes have referred to the death penalty with approval or the assumption of the illicitness of the penalty; for example, Clement VIII, Gregory XIII, Urban VIII.[14]

C: Teaching of Some Theologians

Many Theologians seem to be very clear about the death penalty. In fact, I have only seen one who questioned the use of the final sanction while he admitted its liceity in certain cases. Others I have consulted all teach its legitimacy. St. Thomas’ many references to punishment and the death penalty seem to have been the source for many later writers and commentators; hence his arguments would be worth examining more closely.

St. Thomas Aquinas: Aristotle had said that some men are “the most savage of animals,”[15] that “A bad man is worst than a beast,”’[16] and that anyone who lives outside of society “must be either a beast or a god.”’’[17] St. Thomas Aquinas spoke in a similar vein explaining that some citizens are unfit to live among men.[18]

Few have had the same insights into human nature and man’s immortal destiny as St. Thomas, yet he saw the need to remove some men from their earthly existence.[19] It is as if to say that “We love you Joe but it is impossible to live with you!” How tragic would be the case of a murdered man who, while in the state of mortal sin, is suddenly thrust into facing his Maker without a moment for reconciliation; thus he is lost for eternity. Such crimes deserve the severest punishment

In St. Thomas’ most mature work, he expresses very clearly that it is laudable for a government to remove a man permanently from society, if it is necessary for the sake of the common good.[2o] St. Thomas certainly knew all the circumstances of human life if any man knew them. He understood, probably more than any scholar, how serious human life is, how far we should go with forgiveness, the aberrations of human behavior, the seriousness of bringing death to a man, one who is a sinner at that, and yet he considered the death penalty necessary for the protection of civil society.[21]

It is noteworthy that St. Thomas first deals with the killing of living things lower than man in article I (q. 64) and then with the killing of a guilty man in article 2. He justifies the execution in order to remove from society, according to the principle of totality, pestiferous men who act lower than beasts.[22] Indeed, he considers the action of the government laudable. Moreover, he confirms his teaching in several places.

Although the principle of double effect is not overtly employed in the second article, nevertheless it is quite obviously implied.[23] For St. Thomas would never justify an act directly aimed at an evil end (death is a physical evil) but would tolerate that evil while attaining a good end.

In various works, St. Thomas makes his mind clear for he considers the death penalty a necessary function of civil authorities arguing, like Aristotle, from the fact that “some men are unfit to live among men.” At the same time, he answers certain objections, for example, the idea of rehabilitation and other similar arguments explaining that “these arguments are frivolous”[24] for, as he explained, “… the common good is better than the particular good of one person.”

Among the many references to the death penalty mentioned by St. Thomas, the following deserve special attention: II-II, q.64; and q.65; II-II, q. 108; I-II, q. 87; SCG IlI, 140-146; In Sent. IV d. 20, a. l, q. 3, 3m; d.21, q. l, a. 3, g. 2, 3m; and many other places.

St. Augustine: The distinctions St. Augustine makes are very interesting

“The soldier who has slain a man in obedience to the authority under which he is lawfully commissioned … is not accused of murder by any law of his state; nay, if he has not slain him, it is then he is accused of treason to the state, and of despising the law. But if he has been acting on his own authority, and at his own impulse, he has in this case incurred the crime of shedding human blood. And thus he is punished for doing without orders the very thing he is punished for neglecting to do when he has been ordered.”[25]

Augustine makes it clear that the power of government to execute comes from the obligation on governments to carry out their work because they have “represented in their persons the public justice or the wisdom of govemment, and in this capacity have put to death wicked men; such persons have by no means violated the commandment, ‘Thou shalt not kill’.” [26]

F.C.R. Billuart: This author states that, “I say: It is permissible to kill malefactors harmful to the corrlmon good.”[27]

Michel Labourdette: Labourdette draws attention to the reasoning of St. Thomas showing how he bases his argument on two premises: Fact: one who does a criminal act behaves in a manner lower than the beasts; Principle of Totality: if an infectious part (a criminal) endangers the whole (the community), it is a meritorious act by civil authorities to remove that part.’[28]

B.H. Merkelbach: He proves the following thesis, “From natural right … the supreme civil authority can remove with capital punishment evil doers, fully convicted of most serious crime, to the extent that the public good requires it.”[29]

Bernard Haring: He declares that,

“We must conclude from the teaching of the Bible and the evidence of the entire Christian tradition that the state has the right to inflict capital punishment. We may not deny this right basically and in principle. …. Mildness toward offenders is cruelty toward the innocent who are deprived of efficacious defense through the collapse of justice, to which widespread increase in crime is often directly traceable. To cite but one example, the authorities that leave flagrant abortion unpunished are actually cruel toward innocent unborn children murdered in their mothers’ wombs.”[3o]

Henry Davis: Notes that “God has given to the State the right over life and death, as He has given to every man the right of self defense against unjust aggression. This moral power of the State has been universally acknowledged in Christian tradition.”[31]

John Ford: He explains that, “… The State is then merely acting in self-defense and using a right given it by the author of nature for a necessary end. And so it is not the case of man killing his fellowman without the authority of God, but it is God the Master of life and death by means of man executing justice. For he (the ruler) is God’s minister and beareth not the sword in vain.”[32]

H. Jone and U. Adelmanz: Under the title of “Killing the Criminal,” they have explained that,

“A criminal may be executed if juridical proof has established the moral certainty that he has committed a grave crime for which the state, in the interest of the common welfare, inflicts capital punishment, and if someone has been authorized by the state to execute the sentence.”[33]

Other Theologians offer similar teachings concerning the death penalty.”[34]

The Catechism of the Catholic Church and Other Sources

The 1993 Catechism of the Catholic Church teaches: “Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty. For analogous reasons those holding authority have the right to repel by armed forces aggressors against the community in their charge” (n.2266).[35]

The Catechism does express the same thinking of John Paul II inasmuch as it suggests that the death penalty, although it is morally licit, ought not to be employed in this era. This does not relegate capital punishment to the position of a sinful act as if the Church went wrong in the past and is now having second thoughts about its morality. Such a statement would be blasphemous, for the Church’s function, as interpreter of the natural moral law, has been given to her by Christ who assured us that He would be with us until the end of time. However, it is explicitly stated in this work that the

state has a right to defend itself even up to the point of taking human life.

The New Catholic Encyclopedia records the history of the death penalty from the Catholic perspective.[36]

Dictionary of Moral Theology. In this work, it is stated that,

“The traditional doctrine of the Church is that capital punishment is not opposed to the divine law … its necessity depends on circumstances. A Catholic may not state that the application of the penalty is a violation of the natural law.[37]

Conclusion

It must be concluded that we can uphold the traditional teaching o1 the Church, with its most authoritative and celebrated teachers far too numerous to include here, that capital punishment is permissible and, at times, even necessary. This is a confirmation of the moral status of the death penalty, which is proved in the science of Ethics to be permissible, according to the natural moral law, since it is not intrinsically evil.[38]

Considering this, together with the injunction against murder, we can conclude with ethicians that to kill a man is not intrinsically evil but the direct killing of an innocent man is an evil act. Nevertheless, by reason of extrinsic causes, capital punishment might lose its innocence in a concrete historical context. A man is either innocent or guilty. It is the function of the proper authority, and in the right circumstances, to determine guilt and to remove a citizen for certain gravely evil actions – by death if necessary.

For more, see “The Science of Ethics” by Dr. Dennis Bonnette

Notes:

1. Thomas Higgins, Man as Man, The Science and Art of Ethics (Rev. ed., Milwaukee: Bruce, 1958) 5llff, proof, p. 513; cf. Raphael Waters, “The Moral Justification of Capital Punishment,” Social Justice Review, July/August (1982) 99-106.
2. Fr. David Nuñwez, La Pena de Muerte (Buenos Aires, Organizacion San Jose, 1969) 72-73.
3. cf. The New Oxford Annotated Bible (New Revised Standard Version, New York: O.U. Press, 1977) 97, footnote.
4. St. Thomas Aquinas. Summa Theological, II-II, q. 64, a. 2, On the contrary.
5. John A. McHugh and Charles J. Callan, Moral Theology, A Complete Course (New York: J. F. Wagner, 1930) vol. II, N. 1820.
6. Johannes Messner, Social Ethics (rev. ed,, St. Louis, MO: B. Herder, 1965) 204; Catechism of the Catholic Church ( 1st. ed., Collegeville, MN: The Liturgical Press, 1994) n. 1898.
7. J. Messner, op. cit, Catechism, N. 1899: Rom. 13:1.
8. cf . St. Thomas, op. cit. q. 64, a. 7; T. Higgins, op. cit. 744ff.
9. Centesimus Annus,9.
10. St. Thomas, op. cit. q.108, a.4, ad 2.
I l. First Interactional Congress of Histopathology of the Nervous System, l4th. September, 1952; Michel Labourdene, Cours de Théologie Morale, La Justice (Toulouse, 196l) 103 (my trans.); The Monks of Solesmes, ed., Papal Teachings, The Human Body, (Boston, MA, Daughters of St. Paul, 1960), 205-206.
12. N.C. Document, Statement on Capital Punishment, 3,400, November 13, 1980.
13. Gospel of Life, n.56.
14. Ludovico Pastor, Historia de los Papas (Buenos Aires: Ediciones Gili, 1948). see various entries; William Thomas Walsh, Felipe II, 282-283; John Delaney and James E. Tobin, Dictionary of Catholic Biography (Garden City, NY: Doubleday, l96l), various entries.
15. Politics, I, ch.3, 1253a, 36-37; cf. II-II, 64, 2, ad 3.
16. Ibid.
17. Ibid.
18. 18. St. Thomas Aquinas, Summa Contra Gentiles, III, ch. I46 [4].
19. II-II, 644, 2.
20. Ibid.
21. Ibid.: S.C.G. IIl, ch. I46 [9]
22. S.C.G. III, 146, [4]
23. cf, Waters, op. cit.
2.1. S.C.G. IIl. ch. 146.
25. The City of God, I, XXVI.
26. Ibid. XXI.
27. “Tracctatus de Jure et Justitia,” Summa Sancti Thomae, Diss X, a.1.
28. Labourdette, op. cit. 100-104.
29. Summa Theologia Moralis (Paris: Desclée de Brouwere, 1931) II, p. 353.
30. The Law of Christ (Westminster, MD: Newman Press, 1966) vol. Ill, pp. 124.126.
31. Moral and Pastoral Theology (New York: Sheet and Ward, 1943, Vol. 1, p. 151.
32. “Capital Punishment – A Defense.” Raziel Abelson, ed., Ethics and Metaethics, (New York: St. Martin’s Press, 1963), 21. 1; cf. John Ford and Gerald Kelly, Contemporary Moral Theology (Westminster MD: Newman Press, 1962), vol. 1, pp.262-264.
33. Moral Theology (Westminster, MD: Newman), 1960, p. 214.
341. e.g. A. Sabetti, Compendium Theologia Moralis (32nd ed., Cincinnati, F. Pustet, 1929) n. 265; A.M. Aregui, Summarium Theologia Moralis (Bilbao, 1927); A. Tanquerey, Brevior Synopsis Theologia Moralis (Desclée, 1933), and L. Muller, Sonne de Théologia Moralis (Paris, Desclée, 1936); cf.
35. Collegeville, MN: The Liturgical Press, 1944.
36. See “Capital Punishment.”
37. F. Roberti and P. Palazzini, ed. (trans. H.J. Yannone, Westminster, MD, Newman Press, 1962) 1009.
38. R. Waters, “Capital Punishment: An Evil Act or an Act of Injustice?” Social Justice Review, (Jan./Feb., 1996) 5-11; T. Higgins, Man as Man, The Science and Art of Ethics (rev ed., Milwaukee: Bruce, l9-58) 5llff; Ignatius W. Cox, Liberty: It’s Use and Abuse (New York; Fordham University Press, 1946) 2l5ff; Victor Cathrein, Philosophia Moralis (21 st. ed., Friberg: Herder, 1959) n. 733ff.
39- Higgins, op. cit. 513, no. 1018; Cathrein, Ibid.

Article originally published in the July/August 2002 Social Justice Review