A View of Pope Francis and the Death Penalty, with Something to Offend Everybody

In yet another piece of evidence that the current occupant of the Chair of St. Peter is unwilling to think with the full reservoirs of Catholic tradition, Pope Francis recently announced that the death penalty is a violation of our inviolable human dignity and that the Catholic Church must campaign for its abolition. The Catechism of the Catholic Church will now reflect the teaching that “a new understanding has emerged of the significance of penal sanctions imposed by the state.” This “new understanding” is comprised of the following elements:

increasing understanding that the dignity of a person is not lost even after committing the most serious crimes, the deepened understanding of the significance of penal sanctions applied by the State, and the development of more efficacious detention systems that guarantee the due protection of citizens have given rise to a new awareness that recognizes the inadmissibility of the death penalty and, therefore, calling for its abolition.

In so doing, Pope Francis repudiates 2000 years of tradition in scriptural and natural law reflection on capital punishment by Catholic prelates, theologians, and saints. Luminaries ranging from the earliest of the Church Fathers and Doctors to later modern authorities such as St. Alphonsus Liguori (the announcement was made on Liguori’s feast day), John Henry Newman, Pope Pius XII, John Paul II, and Pope Benedict XVI Emeritus acknowledged the moral permissibility of the state wielding capital punishment, even if the latter two thought that the necessity for its use is rare, if not non-existent. With this pronouncement, Pope Francis once again makes a mess.

Where precisely, though, does this new understanding come from? New theological reflections on the Gospel? An array of natural law thinking helping us come to terms with the heretofore hidden depths of human dignity and how it should be reflected in the positive law? Has this Pope penned them? His allies in the senescent German Church? His outspoken supporters in the North American hierarchy? Like you, dear reader, I have not stumbled on these publications either. What is instructive is to turn to our more rigorous Catholic thinkers who have addressed this subject in its full theological and political aspects.

Cardinal Dulles’ Wisdom

The admirable Avery Cardinal Dulles who passed in 2008 anticipated Pope Francis’s argument for the inadmissibility of the death penalty because of the inviolable nature of human dignity. The good Cardinal opposed the death penalty prudentially but knew the folly of denying that the state always legitimately can wield the sword in defense of the common good, even if that sword should mostly remain sheathed. In a wise 2001 essay in First Things that touches on theology, natural law, and prudential legal judgments, Dulles first reminded us that this absolutist position on the death penalty, favored by progressive clerics for the past few decades, is not new and is not built on deep and prayerful theological reflection and development of doctrine. Rather, Christian condemnation of the death penalty as a violation of human dignity stretches back over the centuries to include pacifists, Waldensians, Quakers, Hutterites, and Mennonites, among other Christian denominations and sects. And their aversion to the death penalty emerges from a rather extreme disfavor of governmental authority unlike the traditional Catholic approach that views the state having a necessary role in securing justice for citizens. Moreover, “The mounting opposition to the death penalty,” Dulles observes, “since the Enlightenment has gone hand in hand with a decline of faith in eternal life.” Secularism, liberalism, and the therapeutic mentality have led to the “evaporation of the sense of sin, guilt, and retributive justice, all of which are essential to biblical religion and Catholic faith.” The belief in only an earthly life has made it harder to condemn criminals generally, and more difficult to believe that certain crimes violate a created order of goods that must be vindicated with retributive justice.

The something new that Pope Francis invokes arguably feeds into this loss of faith. It’s more likely, Dulles notes, that the contemporary inability to accept the death penalty for heinous crimes owes more to secular liberal thought than it does to the “deeper penetration” of the Gospel in European countries. For this reason, at least, the pontiff should have taken greater care to distinguish the perspective and motives of his view from that of the secular world.

Accompanying that loss of faith, Dulles further states, is the sense that the political and legal order is itself rooted in natural standards of justice. Absent these we ask ourselves: Who are we to judge anyone with such finality? Dulles also reminds us, though, that while the Church must start from the center of theological and Biblical reflection, when it presumes to speak to the civil authorities it must do so with awareness of the purposes of the law itself.

The Secularization of the Secular State

Fully cognizant of the law and the state on this score is the great French political theorist Pierre Manent. He actually has addressed the issue of capital punishment in his writings, especially in his 2001 book Democracy without Nations. He is that rarest of combinations in Europe, a professing Catholic, a deep conservative analyst of the political order, and a man fully persuaded of the unbearable lightness of Europe’s reigning secular religion of unencumbered individualism and universalist humanitarianism. A centerpiece of the latter is the EU’s abolition of capital punishment.

Manent notes the political argument made by his European contemporaries for the immoral and unnecessary character of capital punishment, even though a traditional liberal argument was that private acts of lethal violence breach the social contract of the state, which protects citizens from the anarchy of the state of nature. The perpetrator recalls this violence and must be condemned on that basis. Because of the anarchy and ensuing carnage of the state of nature, individuals yield their right to execute the law of nature to the state.  In so doing, they charge it with defending them from assaults, lethal and lesser.  However, today’s anti-capital punishment proponents then make a further move.  Because its size, resources, and complexity, the state is unthreatenable, it can render any convicted offender of a heinous crime an impotent threat to society by imprisoning him. Since it is unnecessary, it is unjustified.  And all right-thinking Europeans know that the individual has dignity and can be reformed, so no need to be cruel and all that. Manent says this is the political argument, but it sounds remarkably similar to Pope Francis’s press release last week, one supposedly suffused with Christian understanding.

Manent must remind his fellow Europeans of the implicit moral exchange within the social contract basis of the modern state. That exchange demands that we citizens refrain from being the self-executors of justice as we surely are in the state of nature when attacks are made on our property and security. The state will act in our defense and do so in a manner far more conducive to public order and justice, allowing us to focus on bourgeois pursuits. But sometimes the exchange is temporarily suspended when our fellow citizens are the victims of horrible crimes. Our standing down hurts us or others because it seems to have been in vain. Still, we do it because we are confident that the state will exact the right punishment.

What happens, though, to the authority of the modern state when it definitively leaves behind the death penalty? Heinous crime shows us, Manent argues, that we have not left the state of nature behind, but the state that rejects the death penalty pretends to have moved beyond it. However, the state of nature, Manent correctly notes, is the legitimacy of the modern state. If its reasons for achieving statehood are no longer present, then what does that mean for the prestige of the republic and for the force of its laws? Manent teases out the following question as one example: Can I risk my life for the government when it will not kill the worst of criminals in retributive justice? Will I see it worthy of my devotion when the worst of men are suffered to exist? Have not their crimes placed them beyond the city walls and the contract that built those walls?

The question, Manent says, is one of “high politics,” but this time involving the relationship between the Church and the nation-states of the world, of Europe especially.  The state has always needed to legitimate itself in some way before the church. And many times that effort has been salutary for justice and the rights of its citizens. But the church before the liberal modern state has announced that it will only intercede in the political sphere in an indirect manner. Manent suggests that the church’s stance on the death penalty combined with its general pacifism on war is a most striking intervention, one that diminishes “the spiritual legitimacy of these bodies,” rendering immoral both the interior and exterior defenses of political order. What Pope Francis seems not to have recognized is that “the secular state is itself becoming secularized.”

The secularized state does not claim its origins in nature, or as an agent that protects the God given rights and liberties of dignified persons. The secularized status of our democracies means that they are increasingly unable to provide reasons for their continued existence. Secular reason can scrutinize what interests we should pursue but cannot offer a justification for our life as a constituted people. For that, we require a justification that affirms our shared political existence as a good thing, one that makes our lawful dependency on one another a source of common strength.

Pope Francis is fully conversant with the terms of our liberal humanist experts, but he does not seem to understand that in taking their counsel he drains the spiritual life from his church and the liberal political order.