Magisterial Irresonsibilty

 https://www.firstthings.com/article/2018/10/magisterial-irresponsibility

Luis Francisco Cardinal ­Ladaria Ferrer of the Congregation for the Doctrine of the Faith (CDF) has announced to the bishops Pope Francis’s approval of new material addressing capital punishment in the Catechism of the Catholic Church (number 2267). The inserted passage notes “an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes,” “a new understanding . . . of the significance of penal sanctions,” and “more effective systems of detention.” It concludes, “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’, and she works with determination for its abolition worldwide.” This addition to the Catechismis widely either heralded or attacked as a major doctrinal departure, an abrogation of the Church’s teaching of two millennia that the death penalty is an essentially just penalty. Yet this claim of essential doctrinal change is gravely misleading.

First, it is an absolute norm of Catholic doctrinal interpretation that magisterial documents be read in a collegial fashion. It is assumed that the document belongs to the Church and that the entirety of the Church’s prior teaching and tradition enters into its proper understanding. For this reason alone, the recent statement cannot be a doctrinal “break” or “rupture.” The word for doctrinal breaks is heresy. The Church has taught for two millennia that the death penalty is essentially valid. This is taught in Sacred Scripture, and has been affirmed by popes, numerous catechisms, the consensus of the Fathers of the Church, and the teaching of St. Thomas ­Aquinas. If this teaching is erroneous, then the whole of the ordinary universal magisterium of the Church—­especially its moral magisterium—is merely a contingent effect of ecclesial will. The nihilistic voluntarism of such a view is incompatible with Catholic faith.

Second, the new teaching about “inadmissibility” is expressly predicated on a composite prudential antecedent judgment (indeed, “inadmissibility” is a legal and prudential term). Two of the three considerations offered as supporting the conclusion of inadmissibility are in the prudential order (judgments about the significance of penal sanctions and about the effectiveness of criminal detention systems). Accordingly, the conclusion is predicated on prudential judgments that are susceptible to falsification. Thus, however strong the language of the conclusion, it can specify only prudentially. The conclusion about the inadmissibility of capital punishment in today’s circumstances is an instance of the fourth (and weakest) form of church teaching, prudential admonitions that command the attention of the faithful, but for which believers who conscientiously disagree are never denied communion with the Church.

A third reason why the recently inserted matter does not constitute a break with the prior tradition is that nothing in the Catechism is elevated in authority merely by being included in the Catechism. In this instance, the authority of the insertion arises from the traditional teaching of the essential legitimacy of the penalty and the qualifying, prudential admonitions of Pope John Paul II in Evangelium Vitae. Indeed, John Paul II refused ever to teach that the death penalty is essentially evil, offering only prudential grounds for its restricted use. In the list of intrinsically evil acts in Evangelium Vitae, the death penalty is not to be found. If, as Cardinal Ladaria suggests in his August 1, 2018, letter to the bishops announcing the addition to the Catechism, the new teaching is a development of John Paul II’s actual magisterial teaching—“following the footsteps of the teaching of John Paul II” (cf. paragraph 7)—it must be a prudential development; otherwise, it would contradict, not develop, this teaching. The stronger rhetoric regarding the application of the penalty cannot remove this teaching from the realm of prudential admonition susceptible to falsification.

For these reasons, the inserted material in number 2267 of the Catechism is not and cannot constitute a doctrinal rupture. However, this does not mean one ought to be unreservedly happy about it. There are four reasons for viewing this revision critically and with measured dismay.

The first concerns the “dignitarian” ­premise: the assertion that we now understand human dignity better than did earlier epochs of the Church, especially insofar as we now know that felons retain human dignity despite their crimes. But the Church has always affirmed, and has never denied, that the felon executed for a grave crime possesses human dignity, the imago dei ordered to, and specified by, noble goods in nature and grace. The Church has stipulated only that those engaging in gravely sinful action do not enjoy the further dignity of actual virtue and grace (the imago gratiae or imago Christi), which of course also obtains for others whose grave transgressions in the moral order do not rise to the level of legal felony. Nevertheless, the possibility of repentance—a possibility rooted in the dignity of the felon—has always been affirmed. In fact, the possibility of repentance is rooted in the first human dignity: the spiritual nature of the rational soul shared by all. This spiritual nature makes it possible for a felon to suffer the penalty in a way meritorious of salvation, just as any sinner can enter into suffering in a fashion that purifies his soul.

The Church sends a priest to the condemned felon, not merely a gravedigger, precisely because the felon possesses human dignity and remains a potential subject of sanctifying grace. Further, human dignity has long served as the ground for justifying the penalty. In the tradition, capital punishment is understood as one of the penalties that may be due to a rational agent who uses his freedom to commit the severest crimes. The Church has also held that the human dignity of the innocent merits the most rigorous defense, potentially including punishment by death for those who wrongfully assail the human dignity of others.

Given these considerations, the inserted claim about “increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes” seems both parochial and condescending with respect to prior Catholic teaching. There is no evidence that the Church ever has denied the dignity that felons possess by reason of being created in the image and likeness of God. Some read Thomas’s analysis of felons falling into the servitude of the beasts as a denial of human dignity, but this is a misreading. Thomas refers to the further dignity in virtue and grace toward which the imago dei is ordered. When we fall from this dignity (as do all who gravely sin), we lose the higher dignity to which we are called, as distinct from the inceptive dignity of nature with which we are born. In this sense, criminals, like other sinners, fall into the servitude of the beasts and become worse than beasts: because beasts, lacking the imago dei, are not capable of sin.

Thus it is untrue that the Church has not properly understood human dignity until the modern period. At various times individuals have adopted dehumanizing views of murderers and perpetrators of other grave crimes, but it is both historically and doctrinally false to suggest that the Church has in the past failed to understand that unrepentant felons retain their natural human dignity.

The truth of the matter is that there are differences in sentiment regarding criminal penalties in different historical epochs, differences that have little to do with essential church teaching. We see this in the refinement of sentiment that limits vulgar display of civil penalties today. We rightly no longer approve of treating the public aspect of punishment as though it were a species of “carnival event” or merely a public spectacle. But this is not itself a ground, nor has the Church ever taught it to be one, for denying the essential validity of grave penalties, including the death penalty. Nor are modern times bereft of public indulgence in obscene spectacles.

It is far from obvious that our times are characterized by moral progress in affirming human dignity. Widespread complacence characterizes social attitudes toward the tragedy of abortion. We live in an age not quite sure that children deserve a mother and a father. Meanwhile, secular contemporaries are liable to claim superior sensitivity by reason of sentimental postures, including that of opposing the punishment of the guilty. That we today enjoy a sensibility more averse to vulgar displays of severe penalty does not imply that the Church did not understand human dignity in the past, any more than the tendency of some professed Catholics today to be indifferent to grave sins means that the Church does not understand their gravity. The Church must cope with the sensibilities of epochs, and frames her teachings with due regard for cultural conditions. But these considerations must not be misconstrued as foundational. Indeed, between the previous error of vulgar display of penalty and the modern error of incomprehension of its moral necessity, prior centuries arguably hold the advantage over our own.

In the Catholic tradition, it is the dignity of the human person—not its denial—that undergirds the legitimacy of capital punishment. Only a free, spiritual creature can merit penalty when guilty of grave offense. Only a free, spiritual creature is capable of suffering the death penalty without failing of his final end, because the human spirit is susceptible of conversion. It is this dignity of the human person that guarantees that no earthly suffering, including the need to suffer death as a penalty for grave crime, can of itself prevent anyone from attaining the highest good of union with God. Human dignity also merits the sternest protective legal sanctions, potentially including the death penalty. Genesis 9:6 identifies the imago dei as the very reason for the penalty: “Whosoever shall shed man’s blood, his blood shall be shed: for man was made to the image of God.”

A second, ecclesial reason why a lover of the Church cannot simply celebrate this revision of the Catechism is that it is being presented and publicized in a misleading way. Given its widespread reception as abrogating prior teaching, the prudential character of this small insertion in the Catechism ought to be made clear. Failure to do so invites, and causes, confusion and error. The lowest level of ­doctrine—prudential admonition—lacks the central and defining nature of the higher tiers of Catholic teaching. Not to make clear the prudential character of the insertion escalates the gravity of the question, and the danger of needless division, beyond the immediate matter of the death penalty.

A third reason why this revision of the Catechism is objectively problematic is that the language of the conclusion about the death penalty appears violent and excessive. Taken by itself, it suggests that the penalty is essentially unjust. I have constructed the argument showing that the prudential antecedents make this conclusion impossible. But this nuanced characterization of the teaching is easily overwhelmed by the excessive force of the concluding language of the statement. To speak of the death penalty as an “attack on the inviolability and dignity of the person”—taken in itself and apart from its prudential antecedents—suggests a wholesale break with tradition. There is an ultra vires excess in this formulation that is likely to be misunderstood and assimilated wholly to secular humanitarianism. The rhetoric of the conclusion, if predicated on the prudential reasons given, ought to be prudential. But the language used does not sound prudential and is inordinate. This exacerbates the confusion and is a grave defect. It ought to be corrected.

A fourth and final reservation regarding the catechetical insert is that in all frankness, the prudential counsel it asserts seems at best equivocal. The claim that new discoveries about the nature of penal sanctions and new methods of detention do away with further questions concerning the protection of society from the wicked, or the deterrence of crime (to say nothing of changing the essential justice of the death penalty itself), is false. There are many murders performed in prison by murderers who have been given life sentences. Clearly, the claim that the method of their detention—even in North America—renders this impossible is empirically false. The issue of deterrence is also complex and not one-sided. The Catholic tradition is not Kantian: There may be several penalties that are proportionately and essentially just, and further questions of their relation to the common good may make one preferable over others. Both rehabilitation and deterrence are such medicinal considerations beyond just retributive proportion. Finally, it is not clear that dignity is invariably better served by withholding the death penalty. A rational creature may merit a penalty that accordingly honors rather than impugns his rational dignity, and the foreknown proximity of death is not infrequently an occasion for the grace of conversion.

These are reasons why many believing Catholics could not and did not concur with John Paul II’s prudence on this matter when he spelled it out in Evangelium Vitae and in the Catechism of the Catholic Church. For his part, John Paul II understood that they had every right as Catholics to their judgment in this matter. The revision to the Catechism more forcefully asserts this prudential counsel and thus does not break with tradition. Nevertheless, as a universal proposition, it does not seem to be unequivocally good counsel.

For secularized populations in the West, the death penalty may appear to encourage final acts of despair rather than repentance. For a society that has no living belief in the immortal soul, capital punishment may seem a pitiless assault on the only hope we have, which is earthly life. Yet the sentimentalism lurking behind this reasoning invites perverse conclusions. Why shouldn’t today’s “increasing awareness” of human dignity lead to the conclusion that all should be given greater control over our deaths so that we suffer from less fear and despair at the end? If death, rather than sin and the rejection of God, becomes the greatest threat to human dignity, then someone might judge there to be a prudential need to permit euthanasia, the benevolent subjugation of death to human autonomy. No matter how much better this might make someone feel about approaching death, it would not be just. Similarly, it is not just to derogate the common good by excluding capital punishment in circumstances where the legitimate ends of criminal penalty are not otherwise prudentially achievable.

The presence of better technologies of detention, along with other concerns, doubtless provides reasons for a more sparing use of the death penalty. But it does not seem sufficient to ground the contingently universal prudential proposition now urged on us. Further, it is legislatures and courts who must judge prudential factors. A one-size-fits-all prudence is simul­taneously subversive of prudence and indifferent to the real grace of state bestowed by providence on those called to assess the prudential factors.

The universality implied in the rhetoric of the catechetical revision is not and cannot be essential and normative; it can only be prudential and contingent. In my judgment, the evidence is not unequivocally supportive even of the claim to contingent universality. The argument for it does not seem intellectually credible. However, a normative, necessary, and essential claim—the kind suggested by the inordinate concluding language of the catechetical insert—is more hazardous than questionable counsel. Taken by itself (apart from its prudential grounds), it leads to conclusions contrary to Scripture, contrary to tradition, contrary to the teachings of all the popes until the present, and contrary to the unanimous consensus of the Fathers, whose profound Christian aversion to bloody punishment—man was not created for death!—did not keep them from affirming the essential justice of the penalty.

If a pontiff were to claim an independent authority to suppress Scripture, tradition, and defined doctrine—as though one did not need to be a Catholic believer in order to be pope, and Christ founded the papacy to undo his teaching—we would be faced with an antipope controversy arising from papal schism and heresy. That this situation is possible in a pope is proven by the example of Honorius. He may not have been a formal heretic, but there is no doubt that he issued heretical judgments and was condemned for it. I do not believe that the present pontiff intends to claim that the papacy has a power of doctrinal abrogation, which would be an utterly strange claim. Can God be a trinity one day, and not a trinity the next, or adultery a sin one day, and a good act the next, because a pope has decided to abrogate teaching? The thing is absurd on its face. The papacy serves Scripture and tradition.

In the matter of capital punishment, the Congregation for the Doctrine of the Faith clearly evinces concern with continuity. The new matter added to the Catechism is a prudential admonition expressed more strongly than has been done before, but still at the lowest level of doctrine, that of prudential admonition. Nonetheless, concern for continuity is not necessarily achievement of continuity. The needless impugning of the Church’s past understanding of punishment and human dignity, the failure of the CDF to correct the widespread misportrayal of the statement as a condemnation of the penalty as such, and the excessive force and violence in the language of the conclusion—all this is unsettling and ominous. These aspects of the statement and its promulgation are worrisome insofar as they indicate the ease with which the constant teaching of the Church may come to be viewed not as a source of intelligible richness, but as a dead weight of history from which somehow, through a great inversion, the Church is supposed to “liberate” us.

Today, many outside the Church seem at ease with the subordination of the Catholic tradition in the service of wholly secularist categories. It does not aid the pastoral mission of the Church when those responsible for handing on this tradition seem to join in the dismantling of their own theological heritage. Presenting a prudential inflection of teaching as a species of major “doctrinal development” (as though it were indeed abrogation) foments needless division inside the Church. For the earnest believer, the derogation of the doctrinal patrimony of the Church on this matter—as though Scripture, tradition, the consensus of the Fathers, the teaching of Aquinas, and the teaching of all papacies up to the present had been swept away—is in its way as saddening as is the derogation of spiritual and moral integrity in the case of Theodore McCarrick.

Indeed, the losses of doctrinal and moral light are essentially linked: “But if your eye is not sound, your whole body will be full of darkness. If then the light in you is darkness, how great is the darkness!” (Matt. 6:23). The “eye” of the soul is the mind. To illustrate: Many contemporary clerics seem incapable even of naming the genera of the sins recently addressed by the Pennsylvania Grand Jury report detailing its investigation of priestly abuse. These are preponderantly but not exclusively sins of sacrilegious homosexual vice (performed by consecrated persons), of vicious and primarily homosexual rape, and in some cases adding to the evil of rape a horrifically inverted use of Catholic sacramentals to harm the innocent. The protection of such grave evil is not “clericalism,” but vicious contempt for justice and for the absolute norms of Catholic life. In a time of widespread blindness toward the truth—extending far beyond the abuse crisis—even the most marginal or accidental suggestion of abrogating the Church’s two-millennia-old moral doctrine in an ecclesial document is genuinely saddening. Calling things by their right names finally requires an understanding of the natural law and of revelation: Everything is what it is and not another thing. 

Steven A. Long is professor of theology at Ave Maria University.