Capital Punishment and the Infallibility of the Ordinary and Universal Magisterium

ON AUGUST 1, 2018, Pope Francis approved a revision of paragraph 2267 of the Catechism of the Catholic Church, ordering that three paragraphs be inserted to replace the three paragraphs amended by Pope St. John Paul II in 1997, five years after the Catechism's initial release.¹ This magisterial intervention has raised questions about the status of the Church's teaching on capital punishment. Francis's often strong language concerning the death penalty has sometimes been interpreted as condemning capital punishment as intrinsically evil. This article will argue that Pope Francis's teaching is better seen in the context of Catholic magisterial teaching as a development of John Paul II's "intervention in the prudential order."² Moreover, this article will argue that the conditions laid out in Lumen Gentium 25 for an exercise of the ordinary and universal magisterium have been met for the Church's doctrine on capital punishment, and that it is impossible for the magisterium to teach definitively that capital punishment is intrinsically evil.

To this end, this article will first explain the Church's teaching on capital punishment, and what it does and does not say. Second, this article will examine the teaching of sacred Scripture on capital punishment. Third, this article will explain the teaching of Lumen Gentium 25 on the ordinary and universal magisterium. The article will then examine the various sources for knowledge of the ordinary and universal magisterium, such as the papal magisterium, catechisms, canon law, the Fathers of the Church, and the consensus of theologians, to show that the conditions have indeed been met with respect to capital punishment. Finally, this article will examine what problems arise if one attempts to define capital punishment as intrinsically evil, and whether such a declaration could ever be said to constitute a development of doctrine.

I. The Church's Teaching on Capital Punishment

Catholic theologians have described the Catholic doctrine on capital punishment, as classically formulated, as a mean between two extremes. The first extreme was held by groups such as the Waldensians, Anabaptists, and Quakers, who taught that capital punishment was contrary to the gospel and intrinsically evil.³ The second extreme was held by some Reformed theologians who taught that sacred Scripture required that capital punishment be used by every state.⁴ These theonomists, as they are sometimes called, held that with Christ's advent the Old Law was to remain intact except where it was explicitly amended by Christ. In between these two errors is the doctrine of the Catholic Church. One moral manual states: "The traditional doctrine of the church is that capital punishment is not opposed to the divine law, nor is it required by this law as a necessary thing; its necessity depends on circumstances."⁵

According to this doctrine, the state by divine right may have recourse to capital punishment, but it is not required to do so. Thus, any particular society at any given point may conclude that capital punishment is unnecessary, or may require that the death penalty not be inflicted due to the circumstances of a particular age or even a particular case. As we will see, popes and bishops in different ages have held that capital punishment was sometimes appropriate and sometimes not, given either the intention or the circumstances. Thus, a few Fathers of the Church counseled restraint in the use of capital punishment. By contrast, St. Peter Damian, a Doctor of the Church, rebuked a temporal lord for extending mercy to criminals instead of executing some of them, to the harm of his subjects.⁶

Entailed in the magisterium's acceptance of capital punishment is the idea that capital punishment is not intrinsically evil (intrinsece malum). It is important to be precise about what an intrinsically evil act is. As the Catechism of the Catholic Church has it, "there are certain specific kinds of behavior that are always wrong to choose, because choosing them involves a disorder of the will, that is, a moral evil."⁷ These acts are immoral simply on account of...