2094 words, 11 min read
In what is fast becoming a series1, this post will pick up on just one of the 40 "truths” presented by Cardinal Raymond Leo Burke in his “Declaration of the truths relating to some of the most common errors in the life of the Church of our time” - a document he claims is being published in a “spirit of fraternal charity” and one that I wholeheartedly recommend not to read.
Just like with a punnet of strawberries, there are obvious places to look at here too, when trying to decide whether or not to buy it. An easy way to start is to review “truth” #28 on capital punishment, which reads as follows:
“In accordance with Holy Scripture and the constant tradition of the ordinary and universal Magisterium, the Church did not err in teaching that the civil power may lawfully exercise capital punishment on malefactors where this is truly necessary to preserve the existence or just order of societies (see Gen 9:6; John 19:11; Rom 13:1-7; Innocent III, Professio fidei Waldensibus praescripta; Roman Catechism of the Council of Trent, p. III, 5, n. 4; Pius XII, Address to Catholic jurists on December 5, 1954).”This is a direct challenge to the recent change to the Catechism of the Catholic Church, effected by Pope Francis (who has “supreme, full, immediate, and universal ordinary power in the Church” (cf. Cann. 331-334)), which now states the following regarding the death penalty:
“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.Against this background, let us look at three aspects of Burke’s claim: first whether the Church erred, second, whether its tradition (on the basis of the references in this “truth”) has been constant and - most seriously - whether the lawfulness of capital punishment is in accordance with Holy Scripture.
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”, and she works with determination for its abolition worldwide.”
First, the Catholic Church today does teach that the death penalty is always inadmissible as is set out by its supreme legislator (Pope Francis) and promulgated in its Catechism. Applying the Church’s past teaching to today - as Cardinal Burke does – is therefore an act of erring and in direct conflict with the Church’s Magisterium.2
Second, let’s take a closer look at the references to the “constant tradition of the ordinary and universal Magisterium” provided by Burke. The first of these is a passage from the 1566 Catechism of the Council of Trent, which reads as follows:
“Execution Of CriminalsThis is pretty clear: to preserve and secure human life, civil authority has the right to put criminals to death as a protective and punitive measure.
Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment- is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.”
Let’s now look at the second of the two references for the constancy of tradition, a talk Pope Pius XII addressed to Italian lawyers in 1954, and at the only paragraph in that text that talks about the death penalty:
“The human judge, on the other hand, since he does not possess the omnipresence and omniscience of God, has the duty of forming for himself, before issuing the judicial sentence, a moral certainty, that is, one which excludes every reasonable and serious doubt about the external fact and the internal guilt. But he does not have immediate insight into the interior dispositions of the accused at the very moment of the crime; rather, in most cases the judge is not in a position to reconstruct them with absolute clarity from the arguments offered as proof, nor, often enough, from the very confession of the delinquent. But this difficulty should not be exaggerated, as though it were ordinarily impossible for a human judge to attain sufficient certainty, and therefore a solid foundation for a sentence. According to the cases, the judge will not fail to consult renowned specialists on the capacity and responsibility of the presumed criminal, and to take into consideration the findings of the modern sciences of psychology, psychiatry and characterology. If, despite all these precautions, there still remains a grave and serious doubt, no conscientious judge will proceed to pronounce a sentence of condemnation, all the more so when there is question of an irrevocable punishment, such as the death penalty.”Hm ... this is somewhat different from the first reference. Yes, the death penalty is not deemed inadmissible. However, it is presented as a case where the general challenges of ascertaining guilt and culpability, that are essential limitations of human judges as compared with God, the ultimate Judge, impose a heightened degree of caution and a heightened burden of proof on the jurist. Incidentally the whole text is set in the context of reforms being considered to the penal code and speaks about the relationship between crime and punishment, which it examines from psychological, juridical, moral and religious angles. Far from being a simple affirmation of the rights of the state, as set out by the Tridentine Catechism, Pius XII’s reflection is a careful, cautious one, calling for checks and balances commensurate with the irrevocability of capital punishment.
Moving beyond the two references provided to substantiate “constancy of tradition”, it is worth noting that the first mention of the death penalty in any conciliar document of the western Church comes on 6th July 1415, during the 16th session of the Council of Constance (none of the 15 councils that pre-date it, starting with the Council of Nicea in 325 AD, even mention the topic):
“Doctors who state that anybody subjected to ecclesiastical censure, if he refuses to be corrected, should be handed over to the judgment of the secular authority, are undoubtedly following in this the chief priests, the scribes and the pharisees who handed over to the secular authority Christ himself, since he was unwilling to obey them in all things, saying, It is not lawful for us to put any man to death; these gave him to the civil judge, so that such men are even greater murderers than Pilate.”Again, this does not sound very “constant” (pun intended) with the Tridentine text. Church authorities handing transgressors over to secular authority are “greater murderers than Pilate”? But, isn’t the state perfectly within its rights to mete out the death penalty, as the Tridentine text suggests?
Let’s also bracket Burke’s references from the other end, with the wording of the Catechism as approved by St. John Paul II, where its §2267 sets out the Church’s position in 1992 (now replaced by Francis’ text quoted above):
“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.Note again the tone of how the topic is dealt with, which is in continuity with Pius XII’s approach and takes it further still. Unlike the Tridentine text, capital punishment is a last resort and one whose likelihood of being legitimate is close to nil, if not nil.
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 to 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 definitely 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 nonexistent.””
Third, let’s turn to Burke’s claim that capital punishment is in accordance with Holy Scripture, and in particular with the two New Testament references. The first points to John 19:11, which goes: “Jesus answered [him], “You would have no power over me if it had not been given to you from above. For this reason the one who handed me over to you has the greater sin.”” Here the “him” is Pilate and reading the passage as condoning capital punishment is a rather lazy application of how this passage has been interpreted during the history of the Church (although not an uncommon one). While St. Augustine takes the reference to “from above” here as being “from God”, as in “all power comes from God”, to go from there to taking all application of power to be good is some stretch and one that both St. Augustine himself and later St. Thomas Aquinas refutes very clearly in his commentary on John’s Gospel:
“So, first Christ teaches Pilate about the source of his power; secondly, about the greatness of his sin.Far from suggesting that Pilate’s application of the death penalty to Jesus is a “good thing”, St. Thomas recognises it as a sin - as sin committed while exercising God-given power. Just by giving you a knife (that can be used for a lot of good), I am not condoning let alone approving everything you do with it.
In regard to the first he says, You would have no power over me unless it had been given you from above. He is saying in effect: If you seem to have some power, you do not have this from yourself, but it has been given to you from above, from God, from whom all power comes: “By me kings reign” (Prv 8:15). He says no power, that is, no matter how little, because Pilate did have a limited power under a greater one, the power of Caesar: “For I am a man under authority” (Mt 8:9).
Therefore, he concludes, he who delivered me to you, that is, Judas or the chief priests, has the greater sin. He says greater, to indicate that both those who delivered him up to Pilate and Pilate himself were guilty of sin.” (§2394-2396)
The second reference, to Romans 13:1-7 again seems to be taken by Burke to follow the same pattern of equating the divine source of power with the goodness of its application. And it is St. Thomas Aquinas who succinctly debunks this misinterpretation of Scripture too:
“The order of authority derives from God, as the Apostle says [in Romans 13:1-7]. For this reason, the duty of obedience is, for the Christian, a consequence of this derivation of authority from God, and ceases when that ceases. But, as we have already said, authority may fail to derive from God for two reasons: either because of the way in which authority has been obtained, or in consequence of the use which is made of it.”I’ll leave the analysis of the other 39 “truths” to the reader who chooses to ignore my advice ...
1 For the previous one, on Cardinal Müller, see here.
2 I know that I am side-stepping the literal claim of “truth” #28 which is about whether the Church did or did not err in the past. This is a different question from whether its past teaching is true today.
