The Intrinsic Good of Capital Punishment [Article XXXVII (3)]

As we have seen, there are multiple Articles that were written to address points of controversy between the Church of England and the Church of Rome, only for the latter to shift toward the tenor and practice of the former in recent years (see comments on Articles XXIV, XXX, and XXXIV). In the case of the present Article, however, we find that the Roman Church, once in agreement with the Church of England and the broader Christian tradition, has drifted away on this particular topic, namely the admissibility of capital punishment.

The Article plainly states that “the Laws of the Realm may punish Christian men with death, for heinous and grievous offences,” which principle is firmly grounded in biblical teaching, as Browne argues: “For murder, at least, there seems full Scripture authority, that nations should inflict the punishment of death.” Some commentators have pointed out that the Article says nothing about whether capital punishment is “advisable” in any given case, only that it is allowed in principle.^[1] Not even ten years ago the Catechism of the Catholic Church taught the same thing, albeit with a clear inclination against the use of capital punishment in practice:

Assuming that the guilty party’s identity and responsibility have been fully determined, 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. If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person. Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm— without definitively taking away from him the possibility of redeeming himself—the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non-existent.”^[2]

In 2018, however, the same section of the Catechism was revised to say that capital punishment is “inadmissible”:

Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good. Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption. 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”, [Francis, Address to Participants in the Meeting Organized by the Pontifical Council for the Promotion of the New Evangelization, 11 October 2017] and she works with determination for its abolition worldwide.^[3]

As would be expected, the Church of Rome maintains that this teaching is “in continuity with the preceding Magisterium while bringing forth a coherent development of Catholic doctrine.”^[4] The “coherent development” in this case is said to be the changed circumstances of modernity and, as the revised Catechism puts it, “a new understanding…of the significance of penal sanctions imposed by the state.” As one Roman apologist explains, “In the past the state’s penal sanctions were understood principally as administering justice (including divine justice) to wrongdoers, but today the Church understands them principally as seeking to protect society and (hopefully) rehabilitate the offender.”^[5] In short, “The revision is warranted by the changed understanding of the state’s penal sanctions and the development of more effective detention systems.”^[6] Thus, on this reading, the Catechism’s teaching that capital punishment is “inadmissible”^[7] should not be understood to mean that capital punishment is “intrinsically evil,” which would be a clear contradiction of previous teaching.^[8] Rather, “The death penalty is permissible in one age and impermissible in another precisely because of a change in circumstances.”^[9]

Even if it is granted that the Church of Rome has not gone so far as to declare capital punishment to be intrinsically evil, it is difficult to deny that its contemporary teaching on the nature of punishment is markedly different from what it taught in centuries past. Sadly, the Anglican tradition is not exempt from this criticism, as many commentators on the Articles—Browne included—seem to agree that the primary (if not the only) purpose of punishment is to protect the welfare of society by deterring further crimes, although some mention the aim of rehabilitating the criminal as well.^[10] In the words of Browne, “It is truly said, that punishments inflicted by public authority are not for revenge, but for the suppression of evil. More benevolence is shown in punishing violence, and so repressing it, than in suffering it to prevail.”^[11] What is more, some of these commentators have taught that capital punishment is only justified in cases where “the safety of the state, or the lives and property of individuals can be preserved by no other means.”^[12] On this logic, there is nothing in principle preventing the Article from being revised in the same manner as the Roman Catechism so as practically to prohibit capital punishment altogether, with such a move being unlikely only on account of inertia and widespread indifference to the Articles in general.^[13]

But while deterrence is a legitimate purpose of punishment, it is not the only (or even primary) one. As traditionally conceived, “‘the most important function’ of punishment in general is the securing of retributive justice,” the purpose of which is to “inflict a harm on the offender himself because he deserves it, rather than being merely a response to the offender’s actions.”^[14] On this understanding of justice, capital punishment is owed in the case of murder because “blood must wash out blood.”^[15] The concept of retributive justice is not the product of human artifice or cruelty, but is in fact a reflection of God’s character: “Scripture teaches that God’s retributive justice is ultimately rooted in his holiness, the attribute that describes God’s internal moral excellence or his ethical perfection.”^[16] This is the unified testimony of Scripture, in both the Old and New Testaments, that “the ethical character of God expresses itself in retributive justice so that God impartially and equitably judges and punishes sin.”^[17] Therefore, retribution is essential to punishment,^[18] and so long as men slay one another, capital punishment can never be ruled out in principle.^[19]

Notes

1. See Gibson, Articles, 780–81; Kidd, Articles, 267; Tait, Articles, 233; Bicknell, Articles, 555; and Thomas, Articles, 475. ↑
2. Catholic Church, Catechism (1994), par. 2267. In prior centuries, the Roman Church affirmed the propriety of capital punishment unreservedly. See, e.g., Catechism of the Council of Trent, 280. ↑
3. Catholic Church, Catechism, par. 2267, https://www.vatican.va/archive/ENG0015/__P7Z.HTM. ↑
4. Luis Ladaria, “Letter to the Bishops Regarding the New Revision of Number 2267 of the Catechism of the Catholic Church on the Death Penalty,” 1 August 2018, § 7, https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20180801_lettera-vescovi-penadimorte_en.html. ↑
5. Jimmy Akin, “Understanding the Catechism Revision on the Death Penalty,” Catholic Answers, 8 August 2018, https://www.catholic.com/magazine/online-edition/understanding-the-catechism-revision-on-the-death-penalty. ↑
6. Akin, “Death Penalty,” https://www.catholic.com/magazine/online-edition/understanding-the-catechism-revision-on-the-death-penalty. ↑
7. Compare a prior statement from Pope Francis that today capital punishment is “unacceptable,” in “Letter of His Holiness Pope Francis to the President of the International Commission Against the Death Penalty,” 20 March 2015, https://www.vatican.va/content/francesco/en/letters/2015/documents/papa-francesco_20150320_lettera-pena-morte.html. ↑
8. See Akin, “Death Penalty,” https://www.catholic.com/magazine/online-edition/understanding-the-catechism-revision-on-the-death-penalty, and Edward Feser, “Capital Punishment and the Law of Nations,” Edward Feser, 17 May 2023, https://edwardfeser.blogspot.com/2023/05/capital-punishment-and-law-of-nations.html. ↑
9. Barrett Turner, “Pope Francis and the Death Penalty: A Conditional Advance of Justice in the Law of Nations,” Nova et Vetera 16, no. 4 (2018): 1044, https://archive.stpaulcenter.com/01-nv-16-4-turner/. ↑
10. See Waite, Articles, 539, and Burnet, Articles, 508. ↑
11. See also Waite, Articles, 539; Burnet, Articles, 508–509; Welchman, Articles, 84–85; Baker, Articles, 207; Maclear and Williams, Articles, 421; and Bicknell, Articles, 555. ↑
12. Waite, Articles, 540. See also Burnet, Articles, 509. ↑
13. In the American context, the prospect is moot because the language affirming the principle of capital punishment (and, for that matter, warfare) was never retained in the American version of the Article to begin with. ↑
14. Edward Feser, “Capital Punishment and the Infallibility of the Ordinary Magisterium,” Catholic World Report, 20 January 2018, https://www.catholicworldreport.com/2018/01/20/capital-punishment-and-the-infallibility-of-the-ordinary-magisterium/, italics original. ↑
15. Forbes, Articles, 781. ↑
16. Charles Gregory Jackson, “The Retributive Justice of God” (Ph.D diss., The Southern Baptist Theological Seminary, 2012), 7. ↑
17. Jackson, “Retributive Justice,” 5. ↑
18. As Turner has observed, “To say that retribution is not a legitimate purpose in punishment would not only contradict the Catechism itself (see §2266), but also the Compendium, the Roman Catechism, and a number of other papal allocutions, let alone the traditional teaching of theologians” (Turner, “Death Penalty,” 1049n26). The current Catechism of the Catholic Church does not explicitly say that retribution is no longer a legitimate purpose in punishment, but its focus on social deterrence and criminal rehabilitation functions to deemphasize it. Notably, Feser writes that “Pope Pius XII, who taught more systematically and at much greater length about the topic of punishment and criminal justice than any other pope, explicitly addressed the view that modern times call for a new understanding of punishment that deemphasizes retribution and emphasizes instead the protection of society and rehabilitation. And he explicitly rejected this position as contrary to scripture and the traditional teaching of the Church” (“Infallibility,” https://www.catholicworldreport.com/2018/01/20/capital-punishment-and-the-infallibility-of-the-ordinary-magisterium/, italics original). ↑
19. For more on the intrinsic good of capital punishment, see Edward Feser and Joseph M. Bessette, By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment (San Francisco: Ignatius Press, 2017), and Edward Feser, “The Justice of Capital Punishment,” in The Palgrave Handbook on the Philosophy of Punishment, ed. Matthew C. Altman (London: Palgrave Macmillan, 2023), 725–46. ↑