The death penalty and the spirit of the law

Over at Where Peter Is, Robert Fastiggi continues his look at the development of doctrine concerning the death penalty. His basic goal in the second part of his essay is to show that, despite the outrage Reactionaries, the Church retains the authority to develop doctrine even when they don’t like it. He concludes:

The Magisterium of the Church, represented by a letter of the Cardinal Prefect and Secretary of the Congregation for the Doctrine of the Faith—with the approval of the Roman Pontiff—has affirmed that there has been “an authentic development of doctrine” of the Church on the death penalty. This shows that there was not a definitive magisterial tradition standing in the way of this doctrinal development, which now affirms that the death penalty is an attack on the dignity of the human person. I know Feser, Bessette, and Steven A. Long have argued that the death penalty actually affirms human dignity because it treats people as free and rational beings. The Magisterium, though, has rejected that argument, and we hope that Professors Feser, Bessette, and Long will now acknowledge that the position they defended is not now the position of the Catholic Church.

Development of doctrine, as distinct from mutation, means that the Faith becomes more itself than ever, just as a baby growing into a man becomes more himself (as distinct from a baby mutating into and octopus or a pine tree).

The paradigm of this is seen in Acts 15, when the Church develops Christ’s teaching of his saving death and resurrection and his teaching about the availability of salvation to the Gentiles and realizes that the ceremonial laws of Moses are not necessary for Gentiles to perform in order to become Christians. Consequently, the Church concludes that (despite 2000 years of Jewish custom) Gentiles need not be circumcised or keep kosher in order to join the New Covenant community. And just as with Reactionary Catholics today concerning the death penalty, this perfectly legitimate development of doctrine is greeted with hostility and fear, not as a logical development, but as a mutation.

In the case of the death penalty, the Church, as at the Council of Jerusalem, retains the authority to say, “It seemed good to the Holy Spirit and to us” to urge civil authorities to do always what she once urged them to do sometimes: namely, to spare the condemned.

For the reality is that there has never been a time in the Church’s history where capital criminals had to be executed as some sort of positive divine command. Rather, execution has always been treated as a permission–a concession to human weakness and the fragility of civil law, rather like divorce in the Old Testament. It has always been treated like a bad thing to be endured as the best of a bad job, not as a shining ideal. And so, there are many occasions in the Church’s history when capital criminals have been spared, beginning with the woman taken in adultery (a capital crime under the law of Moses).

Likewise, we find that the Church prescribed not death, but lengthy penances for those guilty of murder in the early centuries of the Church. To inflict death was seen as just and a prophylactic again violence in a violent culture with few protections for the vulnerable. But to spare capital criminals was not treated as a sin, which it would have to have been if the Church had ever taught that the death penalty was absolutely required in every capital crime.

In short, there has always been flexibility in the Church’s approach to capital punishment. All she is has done (in obvious response to both a deepened understanding of the dignity of the human person and to the rise of horror states with the power to kill millions of their own citizens) has been to say, “Don’t kill people if you don’t need to–and you don’t need to kill anybody on death row. So don’t.”

More tomorrow.


8 Responses

  1. Some Catholic writer I have read – it would either have been John Henry Newman or Ronald Knox – says that people often equate doctrine and dogma, incorrectly. Dogma does not change. Doctrine is the way dogma is *taught*. Doctrine changes, as the understanding of the dogma grows, and as the needs of people change.

    However, doing a search on line says something different: that doctrine is all the church teaching, dogma is a subset of what has been divinely revealed. So perhaps I didn’t understand (Newman or Knox – frustrating I can’t remember which!)

  2. Yes, I saw that – but I think it was Newman, in his Essay on the Development of Christian Doctrine – which, together with his Apologia Pro Vita Sua and Knox’s The Belief of Catholics were instrumental in my becoming a Catholic – Newman talked there about doctrines being the teaching based on the deposit of faith and that the teaching developed from deeper understanding of the deposit and also on the state of the world.

  3. It’s interesting to note that even the Spanish Inquisition was much more lenient than secular courts. Of course, they operated on the basis of Roman law where the defendant was guilty until proven innocent.
    The Inquisition was neutral, its goal was to inquire whether the defendant was guilty of heresy or not. It wasn’t presumption of innocence just yet, but no presumption of guilt, either.
    The Inquisition wouldn’t catch people on the street and wouldn’t blindly accept rumors, but required irrefutable testimonials, bearing in mind that Jesus was condemned by testimony of two false witnesses. It would also try people handed over to them by secular courts or when the accused asked to be tried by the Inquisition.
    Secular courts didn’t like handing people over to the Inquisition since it would actually hear both sides and it didn’t resort to torture* (that’s an 18th century age of enlightenment invention), and Inquisition would regularly find the accused not guilty. Secular courts would willingly turn the accused over to the Inquisition only if they had nothing on him other than suspected heresy (which they had no right to try).
    The Inquisition refused the right to condemn the accused to execution. If the accused was found guilty of heresy and unrepenant, he would be turned over to secular courts. Heresy was a capital crime equal to treason (on the basis of rebelling against divine order), so an unrepenant heretic was usually promptly executed.
    However, if the heretic publicly repented, he would be assigned penance, perhaps would receive flogging, but would be protected from capital punishment at least for the duration of his penance (which could range to years, which was often enough to postpone the execution until natural death**).
    If the accused was found orthodox, he would be let go, which usually meant that the secular court granted clemency***, unless the heresy was not the crux of the trial and the accused was guilty of other crimes and could still be convicted.
    In fact, it’s interesting that Sixtus IV issued a Bull that forbade the Spanish Inquisition from expanding to Aragon due to its abuse of power in Castille. The Inquisition was nominally under Church control, but largely autonomous. In response, King Ferdinand warned the pope that he will remove the Inquisition from Church oversight and suggested between the lines that he will turn it into an execution tribunal exactly like the Spanish rulers intended and the pope will lose all influence over it.

    Looking at the reality of 16th-18th century, the Inquisition was a huge leap forward in trying to quench the bloodlust of contemporary rulers.

    *) It’s hard to tell what torture is exactly. Methods of interrogation in 16th or 17th century would be considered inhuman today. Psychological torture was defined only in 20th century. We can expect that current methods of interrogation, even in the presence of an attorney, will be found inhuman in a century or two.
    **) Sure, the accused would be placed in prison awaiting trial or on death row, which isn’t ideal, but arguably better than being executed. And he could be granted clemency during that stay in prison, or could be assigned to a more lenient judge, or his relatives could possibly find proof of his innocence.
    ***) Yep, the court would grant clemency, not proof of innocence. Roman legal system was evil.

  4. Thank you, Mark, for taking note of my articles on capital punishment and the Magisterium. I am glad you mentioned the early medieval penitentials. As you point out, these did not prescribe execution for those who committed murder. If these penitentials understood Gen 9:6 the way Feser et al. do, then those who confessed murder should have been told to hand themselves over to the State for execution. The Penitential Canons of Thedore (ca. 700 AD) provide evidence of assigning penances for murder rather than execution: (see nos. 418, 576.02, XI 4, and XI 7). Thank you again and God bless you.

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