Cardinal Dulles’s Dubia

Let us allow another cardinal to be, in effect, the author of several dubia.

Writing in First Things in 2001, Avery Cardinal Dulles asserted: “The Catholic magisterium does not, and never has, advocated unqualified abolition of the death penalty. I know of no official statement from popes or bishops, whether in the past or in the present, that denies the right of the State to execute offenders at least in certain extreme cases.”

This was true until last week, when Pope Francis changed the Catechism to read, “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.’”

Cardinal Dulles concedes in his 2001 article that Pope John Paul II “has become increasingly vocal in opposing the practice of capital punishment.” But he says that this stance represents the pope’s prudential judgment. The principle remained the same, that the state could have recourse to capital punishment when truly necessary. The laity in particular, with responsibility for the temporal order, were left free in conscience to arrive at a conclusion different from the pope’s.

Because the judgment is prudential, Dulles says, “the magisterium is not changing the doctrine of the Church.” By implication, if the pope’s judgment had not been prudential, his stance would amount to changing—or departing from—the doctrine of the Church.

Suppose, then, a layman—formerly a strong proponent of the death penalty, who studied Evangelium Vitae earnestly—came to see that that encyclical implies a severe limitation of the grounds on which the death penalty may be advocated. Suppose this layman concluded that the state has a right to employ the death penalty, but may do so licitly only when bloodless means for achieving the goals of punishment are not adequate. Suppose this layman, in conscience, reasoned narrowly that the death penalty is necessary for deterring crime, and protecting society, in cases in which a murder has been committed in the course of another crime already punishable by life imprisonment. What would deter a rapist, for example, from murdering his victim and sole witness, if he faces life imprisonment already for rape?

The layman’s reasoning may be faulty. But it is plausible, and it looks like a faithful application of Church teaching. Remember that conscience is the proximate rule of action, and this layman is bound to follow his conscience in this matter, even if it proves mistaken. He might rightly base his conscience on what he learned under Pope John Paul II, which, according to Cardinal Dulles, was the authoritative teaching of the Church from its foundation until August 2, 2018.

The imagined case gives rise to three imagined dubia:

1. Does this layman remain free in conscience to advocate on this narrow basis for the death penalty?
2. If not, has the Church changed its teaching, so that it now “denies the right of the State to execute offenders at least in certain extreme cases”?
3. Since rights in these matters seem based on constant principles involving the nature of civil authority, punishment, and the common good, if the State now lacks this right, did it not always lack this right?   

Cardinal Dulles’s First Things essay does not even raise the possibility that the Church’s teaching on capital punishment might “develop” into an absolute prohibition. For Dulles was merely explaining the teaching of the Catechism, which in a “definitive and normative” way handed down the deposit of faith (depositum fidei). But Francis, when he announced his intention to change the Catechism, suggested a dynamic notion of the deposit of faith: “Tradition is a living reality and only a partial vision regards the ‘deposit of faith’ as something static. … Doctrine cannot be preserved without allowing it to develop, nor can it be tied to an interpretation that is rigid and immutable without demeaning the working of the Holy Spirit.” And so another dubium suggests itself:

4. If the deposit of faith is not static, are there other parts of the Catechism that Francis believes should be changed? If so, may the faithful be informed all at once what these intended changes are, so that the pope and his councilors will not take on the aspect of a standing revolutionary party?

A second reason the cardinal did not believe that the Church’s teaching could “develop” so as to prohibit capital punishment is that the abolitionist position was neither new nor a development. Dulles cited a then-famous article from L’Osservatore Romano by Gino Concetti, who argued in language similar to Pope Francis’s: “In light of the word of God, and thus of faith, life—all human life—is sacred and untouchable. No matter how heinous the crimes … [the criminal] does not lose his fundamental right to life, for it is primordial, inviolable, and inalienable, and thus comes under the power of no one whatsoever.” To this, the cardinal replied:

[The] abolitionist position has a tempting simplicity. But it is not really new. It has been held by sectarian Christians at least since the Middle Ages. Many pacifist groups, such as the Waldensians, the Quakers, the Hutterites, and the Mennonites, have shared this point of view. But, like pacifism itself, this absolutist interpretation of the right to life found no echo at the time among Catholic theologians, who accepted the death penalty as consonant with Scripture, tradition, and the natural law.

The mounting opposition to the death penalty in Europe since the Enlightenment has gone hand in hand with a decline of faith in eternal life. In the nineteenth century the most consistent supporters of capital punishment were the Christian churches, and its most consistent opponents were groups hostile to the churches. When death came to be understood as the ultimate evil rather than as a stage on the way to eternal life, utilitarian philosophers such as Jeremy Bentham found it easy to dismiss capital punishment as “useless annihilation.”

Many governments in Europe and elsewhere have eliminated the death penalty in the twentieth century, often against the protests of religious believers. While this change may be viewed as moral progress, it is probably due, in part, to the evaporation of the sense of sin, guilt, and retributive justice, all of which are essential to biblical religion and Catholic faith. The abolition of the death penalty in formerly Christian countries may owe more to secular humanism than to deeper penetration into the gospel.

The Congregation for the Doctrine of the Faith states that the new teaching on the death penalty arises from “an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes.” But it never was supposed that a loss of human dignity was the rationale for capital punishment. From the beginning, the dignity of every human person has been the basis for capital punishment: “Whosoever shall shed man's blood, his blood shall be shed: for man was made to the image of God” (Gen 9:6)—not, “for he is no longer in the image of God.” When thoughtful persons move back and forth between advocating the death penalty in extreme cases, or not, they typically do not regard themselves as moving back and forth between lacking regard for human dignity, or not.

It would be absurd to say that our generation, with its right to abortion and suicide, has a better appreciation of human dignity than did those who witnessed the crimes of the Nazis and gave up their lives to defeat them. And yet the Nuremberg court, rightly, did not hesitate to execute the chief Nazi offenders.

The CDF states that this new teaching arises, too, from “a new understanding [which] has emerged of the significance of penal sanctions imposed by the state.” What does this mean? If there has been a development, then this assertion should be very clear to us, as development always implies increased insight. Perhaps it has reference to the traditional concept that political authority is derived from God and that, therefore, the “right of the sword” is the expression of God’s justice. Hence, in capital punishment, it would be God, the author of life, who ultimately imposed the death penalty on the offender. But the CDF should not mean that this traditional understanding is now rightly rejected, as it is in secular cultures, because if the authority to punish does not derive from God, then neither does the authority of law. The Church cannot teach this, nor would its teachings be of relevance to lawgivers unless human law derived from God.

Alternatively, perhaps the CDF means to say that whereas punishment once was thought to be retributive, now it is understood as remedial. But aside from presenting a false binary, this “new understanding” would contradict an earlier paragraph in the Catechism: “Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense” (n. 2266).

Francis has said: “It must be clearly stated that the death penalty is an inhumane measure that, regardless of how it is carried out, abases human dignity. It is per se contrary to the Gospel, because it entails the willful suppression of a human life that never ceases to be sacred in the eyes of its Creator.” How is this principle, as stated, different from pacificism? To kill a soldier in war involves the willful suppression of a human life. Although the soldier attacks me, he never ceases to be sacred. He may attack me, then, but it is contrary to the Gospel for me to exert deadly force against him. Or, if I may suppress his life when necessary to defend society, why cannot the criminal’s life be suppressed, when bloodless means do not suffice? Dulles comments: “Pope John Paul II spoke for the whole Catholic tradition when he proclaimed in Evangelium Vitae (1995) that ‘the direct and voluntary killing of an innocent human being is always gravely immoral.’ But he wisely included in that statement the word ‘innocent.’” So then, another dubium:

5. Is it only the suppression of innocent human life which is per se contrary to the Gospel?

Francis defends his change to the Catechism as not merely a new development of Gospel principles, but also as the proper response to a more “mature” consciousness in society. “In past centuries, when means of defense were scarce and society had yet to develop and mature as it has, recourse to the death penalty appeared to be the logical consequence of the correct application of justice. … Concern for preserving power and material wealth led to an over-estimation of the value of the law and prevented a deeper understanding of the Gospel.”

Cardinal Dulles was aware of this kind of argument and pointed to its obvious misuse: “Arguments from the progress of ethical consciousness have been used to promote a number of alleged human rights that the Catholic Church consistently rejects in the name of Scripture and tradition. The magisterium appeals to these authorities as grounds for repudiating divorce, abortion, homosexual relations, and the ordination of women to the priesthood. If the Church feels herself bound by Scripture and tradition in these other areas, it seems inconsistent for Catholics to proclaim a ‘moral revolution’ on the issue of capital punishment.” Hence a further dubium:

6. Does anything in principle keep the pope from changing Church teaching in these other areas also?

Everyone has pointed to the strangeness of the word “inadmissible” in the new teaching: “the Church teaches, in the light of the Gospel, that the death penalty is inadmissible.” Perhaps this word choice is a softening insisted upon by the CDF, intended to remove the appearance of contradiction with earlier teaching, which “per se contrary to the Gospel” certainly suggests. The word “inadmissible” occurs nowhere else in the Catechism. It is almost a solecism in moral theology. We speak of inadmissibility in legal, logical, or interpretive contexts: inadmissible evidence, an inadmissible premise, an inadmissible construction. That is, the category of the inadmissible brings in some notion of will.

Thus, “The death penalty is inadmissible” invites the questions, By whom? On whose will? The language smacks of raw judicial power, portending ominously that the Catechism will conform to the will of successive popes. Much as the US Supreme Court has been politicized, the category of the inadmissible risks politicizing the papacy.

Michael Pakaluk is professor of ethics at the Catholic University of America.

Photo by Justin Brendel.

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