The Church Cannot Teach That Capital Punishment is Inherently Wrong: A Reply to John Finnis

Some actions are inherently wrong, and some are wrong only because of circumstances. In this essay, I will not address the question whether capital punishment is wrong under modern circumstances. My topic is rather whether the death penalty is wrong inherently and in principle, under all circumstances.

In our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, Joseph Bessette and I show that scripture and Catholic tradition have consistently taught that capital punishment can be legitimate, at least in principle. We argue that this has been taught irreformably—that the Church cannot reverse this teaching without contradicting herself and thus undermining her doctrinal credibility in general.

Professor John Finnis disagrees. In two recent essays at Public Discourse (here and here), he has argued that the Church could decide to teach that capital punishment is always and intrinsically wrong. What follows is a reply to his arguments.

Where Finnis and I agree

Finnis and I agree that the Church has never so far taught that capital punishment is intrinsically immoral. The dispute between us, then, is not about Pope Francis’s recent revision to the Catechism. Indeed, Finnis is critical of the revision, as I have been. Finnis thinks that the revision did not actually change Catholic teaching, but did “create at least an impression of change.” But he also thinks that it does so “in a form that obscures the one line of development that would, it seems, be authentic.” In other words, though Finnis thinks the Church could change its traditional teaching, he believes that the specific way that the revised Catechism suggests such a change is not an “authentic” development of doctrine.

About Pope Francis’s address of October 11, 2017, wherein the pope first proposed a change to the Catechism, Finnis has some harsh words:

that address is replete with untethered calls for doctrinal progress, and with assurances about consistency with “past teaching” that all ring hollow, offering quasi-arguments that seem at best question-begging and more likely just incoherent and unserious. Behind such arguments, moreover, there becomes more and more evident an intent to smother key elements of the Church’s most constant and apostolic understanding of its moral teachings, elements reaffirmed most weightily only twenty-five years ago in Veritatis Splendor.

One of Finnis’s objections to the revision, and to the CDF cover letter that announced it, concerns their “unwarrantable confidence” in certain empirical claims about what is sufficient in order to defend society. Another and more important of his objections is that the documents put too much emphasis on human dignity and too little on “God’s absolute lordship over life and death”—and that they do so in a way that gives aid and comfort to a secular rather than Catholic understanding of human dignity.

Since Finnis’s case for the possibility of a change in teaching makes no appeal to the revision, and since I agree with his criticisms of the revision, I say no more about that issue here.

The Catechism as Pope St. John Paul II Left It

The magisterial document that Finnis thinks best supports his case is the 1992 version of the Catechism, specifically no. 2263, which reads:

The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. “The act of self-defense can have a double effect: the preservation of one’s own life; and the killing of the aggressor. . . . The one is intended, the other is not.” [St. Thomas Aquinas, Summa Theologiae II-II, 64, 7]

The principle implicit in this, Finnis claims, is that it is always wrong to intend to cause the death of a human being. Killing in self-defense can be justified by the principle of double effect if the death is not intended, but is rather a foreseen side-effect of the act of self-defense. But it would follow that killing as punishment cannot be justified, because in such killing the death itself is intended. Finnis admits that the Catechism itself does not draw this conclusion, and that later magisterial documents have also refrained from drawing this conclusion. But he thinks that the Church could decide to draw that conclusion in the future.

This is far-fetched. Finnis himself admits that the passage is “confusingly worded” and that what he attributes to it is there only “implicitly.” Furthermore, in order to tease out the proposition in question, Finnis appeals to some complicated exegesis of Aquinas that requires partially accepting and partially rejecting Aquinas’s position on the ethics of killing. And yet despite these complications, Finnis casually asserts that the proposition in question is “unambiguously” there in the Catechism. This is, to say the least, an overstatement. The most that Finnis is entitled to say is that, read out of context, the passage might arguably be interpreted the way he interprets it.

But even that is generous, which brings us to a second problem. The passage speaks explicitly of killing “the innocent,” rather than the guilty, as what is morally prohibited. The passage is also explicit that it is addressing the question of killing in self-defense, not capital punishment. That topic comes up only three paragraphs later, in no. 2266. It is implausible to attribute to this passage any thesis about the ethics of killing in general, when it is not even addressing the question of the ethics of killing in general. So, even when the passage is considered just on its own and outside of any context, Finnis’s reading is not terribly plausible. There is certainly no warrant for the bold assertion that the passage “unambiguously” teaches that intending to cause the death of a human being is always wrong.

Third, when we do consider the larger context, the case for Finnis’s proposed reading falls apart entirely. For when the 1992 Catechism does explicitly address capital punishment at no. 2266, it explicitly characterizes it as a “penalty” or “punishment,” and explicitly says that public authorities have a “well-founded” “right” to inflict this punishment. So, no. 2263 can’t mean what Finnis says it means, because if it did, the authors of the Catechism would not have gone on to say what they do in no. 2266.

Fourth, the only way to salvage Finnis’s interpretation would, accordingly, be to attribute a contradiction to the 1992 Catechism. It is a general principle of exegesis that, all things being equal, if you can interpret a text either in a way that entails a contradiction or in a way that does not, the latter is to be preferred. The burden of proof is on the reader who insists on attributing a contradiction.

But even if we do attribute a contradiction to the 1992 Catechism, the effect would be precisely to undermine its credibility, which would weaken rather than strengthen Finnis’s case. An authority that is self-contradictory is ipso facto an unreliable one, in which case Finnis’s appeal to (what he says he sees in) the Catechism cuts little ice. If the novel doctrine Finnis attributes to the 1992 Catechism really does introduce a contradiction into it, that is a reason to reject the novelty, not to follow out its consequences further.

Bessette and I provide a detailed analysis of the relevant passages from the Catechism in our book, at pp. 158-182. Finnis says nothing in reply to most of the points we make there.

Natural Law and Capital Punishment

Finnis criticizes the natural law case for capital punishment that Bessette and I put forward in the first chapter of our book, and that I briefly summarized in an earlier Public Discourse essay. Finnis ignores the bulk of our discussion in that chapter and focuses instead on the summary from the article, which goes as follows:

1. Wrongdoers deserve punishment.
2. The more grave the wrongdoing, the more severe is the punishment deserved.
3. Some crimes are so grave that no punishment less than death would be proportionate in its severity.
4. Therefore, wrongdoers guilty of such crimes deserve death.
5. Public authorities have the right, in principle, to inflict on wrongdoers the punishments they deserve.
6. Therefore, public authorities have the right, in principle, to inflict the death penalty on those guilty of the gravest offenses.

Finnis rejects premises three and five of this argument, though it is premise three that is the focus of his criticism. His main objection is this:

Aquinas seems to deny Feser’s third premise, or at least to have no interest in affirming or supporting it. Indeed, the Summa Theologiae’s set-piece defense of capital punishment, though doubtless presupposing legal and moral guilt, makes (pace Feser) no appeal—or even allusion – to what punitive measures desert (or retribution) requires.

Now, whether Aquinas believed some claim is less important than whether the claim is true. But put that to one side, because Finnis is wrong about what Aquinas believed. As Bessette and I show in our book, Aquinas repeatedly affirms the general principle that a punishment ought to be proportional to the offense. For example, in Summa Contra Gentiles III.142, Aquinas writes:

If there are degrees in virtuous acts and in sins, as we showed, there must also be degrees among rewards and punishments. Otherwise, equality would not be preserved, that is, if a greater punishment were not given to one who sins more, or a greater reward to one who acts better. Indeed, the same reasoning seems to require different retribution on the basis of the diversity of good and evil, and on the basis of the difference between the good and the better, or between the bad and the worse.

Since Aquinas thinks that a greater punishment ought to be given for a greater offense, and he regards execution precisely as a punishment, it follows that he must regard it as proportional in its severity to the offense for which it is inflicted. In other words, he must be committed precisely to step three of our argument.

It is true that Aquinas doesn’t make this point in the so-called “set-piece” argument to which Finnis refers, wherein Aquinas compares the offender to a diseased body part that is cut away to save the whole body. But that is because Aquinas is not concerned in that particular argument to address the question of whether capital punishment can be legitimate as a matter of retributive justice. He takes that for granted. Rather, what he is addressing is the question of why public authority ought ever actually to apply that particular punishment, given that (as Aquinas says elsewhere) “the punishments of this life are more medicinal than retributive” (Summa Theologiae II-II, 66, 6, Regan translation).

In other words, Aquinas isn’t saying that the analogy with a diseased body part is sufficient by itself to make capital punishment legitimate. Rather, the fact that death is a proportional punishment for certain offenses is what makes it legitimate in principle, as a matter of retributive justice. But he also thinks that in this life, punishments are not primarily concerned with securing retributive justice. That comes in the afterlife. That raises the question why the state should ever actually inflict capital punishment, even if deserved, given that inflicting just deserts is primarily left to God rather than man.

That is where the analogy with the diseased body part comes in. In the passage where Aquinas says that the punishments of this life are “more medicinal than retributive,” he immediately goes on to explain that this is the reason why not every offense worthy of death is in fact to be punished with death. Rather, it is only those that cause “irreparable harm” or “contain some horrible deformity” that ought to punished with death. And that is what is going on in the “set-piece” passage. The analogy with the diseased body part is not meant to establish the state’s right to execute. Rather, the principle of proportional retribution establishes that. What the diseased body part analogy does is to explain why the state should actually exercise that right, given that in this life retribution isn’t by itself sufficient reason to punish.

Bessette and I defend this interpretation in our book at greater length. Finnis asserts that we are wrong, but he doesn’t say anything to show that we are.

Popes Innocent III and Pius XII

Among the papal statements relevant to capital punishment is Pope Innocent III’s directive to the Waldensian heretics that they assent to the following proposition as a condition of their reconciliation with the Church:

We declare that the secular power can without mortal sin impose a judgment of blood provided the punishment is carried out not in hatred but with good judgment, not inconsiderately but after mature deliberation.

Finnis suggests that all that this requires Catholics to believe is that a public official who imposes capital punishment might not meet all of the conditions for mortal sin, and in particular that he might not be subjectively culpable. According to Finnis, the statement doesn’t imply that capital punishment itself really is objectively justifiable, even in principle.

This is quite a strained reading. One could say of any sin whatsoever that the person committing it might not meet all the conditions for mortal sin. It is hardly plausible to suppose that that is all that Pope Innocent III wanted the Waldensians to affirm—especially since there is no reason to believe that they ever denied that in the first place, whereas they did deny that capital punishment was objectively justifiable.

Moreover, in an earlier letter to a Waldensian leader, Innocent emphasized that the reason their teaching was mistaken is that “the law, not the judge, puts to death.” In other words, the pope was teaching that the reason that capital punishment is not mortally sinful is because the law demands it—rather than because conditions for subjective culpability are absent. Surely we have to understand what he intended in the proposition he required the Waldensians to affirm in light of this earlier remark.

Finnis notes that Pope Pius XII affirmed the legitimacy in principle of capital punishment, quoting the following sentences from a 1952 address:

Even in the case of the death penalty the State does not dispose of the individual’s right to life. Rather public authority limits itself to depriving the offender of the good of life in expiation for his guilt, after he, through his crime, deprived himself of his own right to life.

Finnis characterizes this rather dismissively as a mere “drive-by” remark and a “weak” argument that exhibits “inadequacies.” This is unfair. It is not plausible to take Pius’s remarks to be a stand-alone “argument” intended to convince listeners who would not otherwise be likely to accept capital punishment. Rather, it is merely a reiteration of longstanding Church teaching that the average Catholic listener in 1952 would have been familiar with and readily agreed with. Nor is it an isolated “drive-by” reference. As Bessette and I show in our book, Pius explicitly endorsed capital punishment in at least three different addresses.

Finnis also claims that in a 1954 address, Pius XII was “quietly repudiating” any support the defender of capital punishment might seek in St. Paul’s famous teaching in Romans 13:4 that the state “does not bear the sword in vain” but “is the servant of God to execute wrath on the wrongdoer.” In defense of his remarkable assertion, Finnis cites Pius’s remark that sources such as scripture “do not refer to the specific content of individual juridical prescriptions or rules of action (cf. particularly Ep. to the Romans, xiii, 4).” Finnis then proposes a fanciful paraphrase of this remark, according to which Pius is telling his audience not to look for a sanction for the death penalty in St. Paul’s words.

However, when Pius’s remark is read in context, it is obvious that the pope was not addressing the subject of capital punishment at all, but rather talking about the abiding importance of retributive justice. Here is the relevant passage:

Many, perhaps the majority, of civil jurists reject vindictive punishment . . .[But] the Church in her theory and practice has maintained this double type of penalty (medicinal and vindictive), and . . . this is more in agreement with what the sources of revelation and traditional doctrine teach regarding the coercive power of legitimate human authority. It is not a sufficient reply to this assertion to say that the aforementioned sources contain only thoughts which correspond to the historic circumstances and to the culture of the time, and that a general and abiding validity cannot therefore be attributed to them. The reason is that the words of the sources and of the living teaching power do not refer to the specific content of individual juridical prescriptions or rules of action (cf. particularly Ep. to the Romans, xiii, 4), but rather to the essential foundation itself of penal power and of its immanent finality. This in turn is as little determined by the conditions of time and culture as the nature of man and the human society decreed by nature itself.

As the reader can see, capital punishment is not even referred to. Rather, Pius is rebutting the claim that the retributive or “vindictive” function of punishment in general ought to be treated as a relic of the past. Indeed, if the passage implies anything at all about capital punishment, it is the very opposite of what Finnis says it implies. The pope is saying that we should not regard scriptural passages such as Romans 13:4 as applying merely to “juridical prescriptions and rules of action” of past times and cultures, but rather as having an abiding validity.

As Bessette and I note in our book, Pius also went on in a 1957 address explicitly to say that the penal justice of the future will still require “capital punishment in various forms.” Obviously, then, the pope did not regard capital punishment as a practice that reflected merely the “conditions of time and culture” in St. Paul’s day.

Finnis also never explains why we should dismiss Pius’s clear and explicit remarks in support of capital punishment in 1952 (and at least two other occasions) as having no abiding relevance—while at the same time taking (Finnis’s speculative interpretation of) Pius’s 1954 remark as a definitive magisterial repudiation of grounding the legitimacy of capital punishment in Romans 13:4.

Scripture and Tradition

This only scratches the surface of the evidence from scripture and tradition that the legitimacy in principle of capital punishment is irreformable Catholic teaching. Bessette and I marshal this evidence in our book, but, unfortunately, Finnis’s essays ignore most of it. For example, Finnis casually asserts that the Old Testament evidence for execution as a proportional punishment is “null.” He gives no support for this implausible assertion other than to link to an essay by E. Christian Brugger. Yet I responded to that Brugger essay at length months ago in another Public Discourse article of my own. Finnis says nothing in response to my criticisms.

Bessette and I have also argued that the legitimacy in principle of capital punishment meets the criteria for being an infallibly proposed teaching of the ordinary magisterium of the Church. We address the question of the authority of the ordinary magisterium at some length, particularly in pp. 111-122 and 135-157 of our book. In an article at Catholic World Report earlier this year, I provided further argumentation showing that the legitimacy in principle of the death penalty meets the criteria for infallibility. And yet Finnis says nothing in response to this argumentation.

In my various writings on this subject, I have emphasized that the Church herself insists that even popes have no authority to introduce novel doctrines, whereas to teach that capital punishment is inherently immoral—which not only goes beyond, but contradicts, what the Church has said for two millennia—would manifestly be a novel doctrine. I have emphasized that to teach that capital punishment is always and intrinsically wrong would be to imply that the Church has for two millennia been leading the faithful into grave moral error and badly misunderstanding scripture. I have pointed out that this would undermine the credibility of the magisterium in general, including the credibility of any pope who would introduce such a novelty. For if the Church could be that wrong for that long about something that serious, why should we trust anything else she says?

What does Finnis have to say in response to these points? Nothing.