Inadmissible: Why Catholics May (and Perhaps Must) Reject the 2018 Revision to CCC §2267

Introduction

In August 2018, then Pope Francis approved a revision to paragraph 2267 of the Catechism of the Catholic Church, declaring “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person” and that the Church “works with determination for its abolition worldwide.”¹ The revision provoked immediate and significant controversy among Catholic theologians, clergy, and laity. That controversy, for the most part, did not come out of a spirit of disobedience or from any desire to resist legitimate authority. It arose because the revised text at the very least appears to stand in direct conflict with the paragraph that immediately precedes it, with the consistent teaching of Scripture, and with the explicit pronouncements of multiple popes across many centuries. The purpose of this essay is not necessarily to argue for the death penalty as a matter of public policy, though a sound argument can be made on its behalf. It is to examine what the Catholic faithful may licitly hold in response to this revision and to argue that the evidence, if honestly considered, provides serious grounds for withholding assent from the revised text.

To that end, this essay will examine three possible positions a Catholic may take in response to the revision, drawing primarily on the framework developed by Dr. John P. Joy, in his 2018 article on the magisterial weight of the revised text. The first position holds that the revision, when read charitably, can be reconciled with the prior teaching of the Church. The second, and the position this essay principally defends, holds that the revision contradicts paragraph 2266, which immediately precedes it, rendering the document internally incoherent and thereby reducing the obligation of the faithful to assent to the revised text. The third position, which this essay raises without asserting definitively, holds that the revision contradicts a teaching proposed infallibly through the ordinary universal magisterium of the Church, in which case the revision is not merely inconsistent but formally erroneous.

The Nature of the Magisterial Act

Before evaluating the content of the revised text, it will be necessary to establish what kind of magisterial act it constitutes and in turn, what sort of response it demands. The Church’s teaching authority operates at three levels which are outlined in the concluding formula of the Congregation for the Doctrine of the Faith’s 1998 Professio fidei. The first two levels encompass infallible teachings, which are proposed either as being divinely revealed and therefore to be believed as a matter of faith, or as definitively to be held as connected to divine revelation. The third level pertains to the authentic, yet non-infallible teaching of the Roman Pontiff or the College of Bishops, which calls for a religious submission of will and intellect on the part of Catholics.²

The revision to paragraph 2267 falls squarely within this third category. While then Pope Francis was certainly acting in an official capacity as the head of the Church, and was addressing a matter of faith and morals, there is no evidence of the definitive mode of proclamation required for infallibility. Canon law speaks clearly to this when it states that “No doctrine is understood as defined infallibly unless this is manifestly evident.”³ The burden of proof then rests on anyone who would claim the contrary to be the case, and no such proof has been offered. This still does not reduce the revision to a matter of mere personal opinion. Religious submission of will and intellect is genuinely owed to authentic papal teaching, and to withhold it on the sole basis of private judgment would certainly be imprudent.⁴ Nevertheless, both Dr. Joy and the Congregation for the Doctrine of the Faith’s document Donum veritatis make clear, that submission may in fact be legitimately withheld when the teaching in question openly conflicts with a defined dogma or irreformable doctrine of the Church.⁵ When presented with such a conflict, the obligation to assent to infallible teaching is a stricter obligation than the religious submission owed to authentic but non-infallible teaching, and it is simply not possible to assent to contradictory propositions. Dr. Joy captures the relationship precisely with the analogy of children and parents: just as children must obey their parents in all things except when commanded to violate God’s law, so too are Catholics bound to assent to authentic papal teaching except when it contradicts what God has revealed, or what the Church has infallibly defined.⁶

The Three Positions

There are three positions a Catholic can hold regarding the revision to paragraph 2267. The first is that the revision can, in fact, be reconciled with the prior teaching of the Church when read with charity. The second is that the revision, while carrying genuine magisterial authority, is not infallible, and where it conflicts with a more deeply rooted doctrinal obligation, Catholics are not only permitted but required to give precedence to the stronger obligation. The third is that the revision contradicts a teaching proposed infallibly through the ordinary magisterium of the Church, and that the revision is not only inconsistent but formally erroneous. Dr. Joy’s 2018 article establishes the theological principles that underlie all three positions and concludes that Catholics are obliged to continue holding the traditional teaching, while leaving open the question of how exactly the revised text is to be characterized.⁷

The reconciliationist reading is the position held in the letter from the Congregation for the Doctrine of the Faith to the bishops, in which Cardinal Ladaria asserts that the revision constitutes an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium.⁸ It is also represented by many in the broader Catholic apologetics community, most notably in the often made argument that the revision pertains only to the prudential application of the death penalty in contemporary circumstances and does not touch the underlying question of its licitness in principle. On this reading, the Church has always taught that the death penalty is licit in principle, and the revision merely reflects the judgment that in modern societies, with developed prison systems capable of protecting the innocent, the conditions that would justify it in practice are no longer present. Catholic Answers apologist Trent Horn advanced a version of this argument in his 2019 dialogue with Timothy Gordon, contending that the revision represents a prudential development rather than a doctrinal reversal.⁹

The Classical Theory of Punishment and the Internal Contradiction

The classical Catholic position on the nature and purpose of punishment is stated very clearly by Edward Feser and Joseph Bessette:

Retribution is the primary aim of punishment insofar as we must always have retribution in view when punishing, even if we have other aims in view as well. Purposes of correction, deterrence, and the like are never by themselves sufficient to justify punishment, since it is never legitimate to inflict a punishment on someone unless he deserves it.¹⁰

The other reasons for punishment mentioned: deterrence, rehabilitation, and the protection of society, are in fact legitimate secondary ends, however they presuppose the primary end of justice, and cannot stand alone without it. That is to say, a punishment imposed solely to protect society, with no regard for the justice that is deserved, is not punishment in any real sense. It is then strictly a means to manage crime in society.

St. Thomas Aquinas lays out the philosophical foundation for the position in his famous Summa theologiae when he argues that grave sin carries an objective moral consequence which only justice can answer. His language is clear and direct on the matter, “By sinning man departs from the order of reason, and consequently falls away from the dignity of his manhood…it may be good to kill a man who has sinned, even as it is to kill a beast. For a bad man is worse than a beast, and is more harmful.”¹¹ So then the principle of proportionality follows from this. As Feser and Bessette write, “If wrongdoers deserve punishment, and if punishment ought to be proportionate to the gravity of the crime, then it seems absurd to deny that there is some level of criminality for which nothing less than capital punishment would be proportionate.”¹² Therefore the death penalty is not merely justified on the grounds that society should be protected, but on the grounds that it is proportionate and deserved.

Pope Pius XII gave authoritative teaching to this same principle in his address to the Sixth International Congress of Penal Law in 1953, when he explicitly addressed and rejected the modern inclination to reframe punishment in purely consequentialist terms. He taught that

the final purpose of punishment must be sought on a higher plane. The essence of the culpable act is the free opposition to a law recognized as binding. It is the rupture and deliberate violation of just order…it is a fundamental exigency of justice whose role in morality is to maintain the existing equilibrium, if it is just, and to restore the balance, when upset. It demands that by punishment the person responsible be forcibly brought to order.¹³

On the question of whether retributive punishment remains valid in the modern day, he was equally clear, “it would not be just to reject completely, and as a matter of principle the function of vindictive punishment…the effectiveness of vindictive penalties is in no way opposed to the function of punishment, which is the reestablishment and restoration of the order of justice which has been disrupted.”¹⁴

All of this considered, the revised paragraph does not represent a development regarding the Catholic idea of punishment, it represents a substitution of it. The revision grounds its conclusion in entirely consequentialist considerations; that is the development of more effective prison systems, the protection of citizens, and the preservation of the possibility of rehabilitation. This idea assumes that the only legitimate purpose of punishment is the protection of society, and that once that purpose can be achieved by other means, the death penalty becomes “inadmissible”. This is precisely the reorientation that Pius XII anticipated and rejected.

The revision’s consequentialist premise also fails on its own terms. According to the Bureau of Justice Statistics, 143 inmates of state and federal prisons in the United States were killed by homicide in 2019 alone, many of them at the hands of those already serving sentences for prior killings.¹⁵ The case of Donald David Dillbeck is one example of another way the utopian idea within the revision falls apart. Dillbeck was serving a life sentence in Florida for the 1979 murder of a sheriff’s deputy when he escaped from custody in 1990, purchased a knife, and within two days stabbed a woman named Faye Vann to death in a shopping mall parking lot in Tallahassee.¹⁶ Faye Vann was allowed to become the victim of a brutal murder, because Donald Dillbeck was allowed to live. Setting aside individual cases and American statistics, the revision’s unmerited confidence in modern prison systems ignores the reality that a great deal of the world still lacks them, and that even the most developed systems can fall prey to deterioration, corruption, and failure over time. This makes it an untenable position for the Universal Church, which spans the entire world.

With the classical theory of punishment established and the revision’s premise shown to be faulty, the internal contradiction now present within the Catechism becomes impossible to resolve. Paragraph 2266, which immediately precedes the revised text but was not itself revised states, “Legitimate public authority has the right and the duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense.”¹⁷ Impossible to miss is the use of not only the term “right,” but “duty.” This is the language of retributive justice. The state has not only the right, but it possesses the duty to inflict punishment proportionate to the offense. This punishment has the primary aim of redressing the disorder brought by the offense, not merely the protection of society.

So then, if the proportionate punishment for the willful taking of innocent human life is death, as the tradition from Genesis 9:6, through Aquinas, and all the way through Pius XII consistently affirms, then paragraph 2267’s declaration that the death penalty is inadmissible directly contradicts paragraph 2266. The Catechism now simultaneously commands the imposition of proportionate punishment, while simultaneously forbidding proportionate punishment for the gravest offense. This represents not just a mere tension, but a contradiction.

The theological consequence of this contradiction is threefold. First, Vatican I’s Dei filius teaches that the meaning of sacred dogmas once declared by the Church can never be abandoned or assigned a different sense, and that any attempt to do such a thing is to be anathema.¹⁸ Second, Donum veritatis acknowledges the fact that a Catholic may find it necessary to withhold assent from authentic non-infallible teaching when serious and well-founded reasons exist.¹⁹ Third, as Dr. Joy observes, it is simply impossible to simultaneously assent to two contradictory propositions.²⁰ When two magisterial obligations conflict with each other, the obligation to the stronger must prevail. The obligation to hold the defined and settled doctrine of the Church, expressed consistently in Holy Scripture, the Church Fathers, multiple Catechisms, and the explicit teaching of Pius XII, is a stronger obligation than the religious submission owed to an authentic but non-infallible revision. When a faithful Catholic gives precedence to the former, he is not acting in disobedience, rather he is acting in accord with a hierarchy of obligations which has been established by the Church herself.

The Question of Formal Error

The second position presented in this essay is sufficient to justify withholding assent from the revised paragraph, but it would be useful to also give honest consideration to the third position, even if it is not fully asserted. If the legitimacy in principle of capital punishment has been infallibly defined by the ordinary universal magisterium, then the text becomes not only incoherent, but erroneous.

In Vatican I’s Dei filius, the conditions for infallible teaching through the ordinary universal magisterium are established as follows: a doctrine contained in divine revelation, proposed as such by the Church through the unanimous consensus of the Fathers and the consistent teaching of the magisterium dispersed throughout the world.²¹ The legitimacy of capital punishment appears to meet these conditions. It is clearly attested in Holy Scripture when it says, “Whoever sheds the blood of man, by man shall his blood be shed” (Gen 9:6), and when Paul teaches that the ruler “does not bear the sword in vain” but is “the servant of God to execute his wrath on the wrongdoer” (Rom 13:4). The Fathers and Doctors of the Church are unanimous in interpreting these texts as an affirmation of the legitimacy of capital punishment as a matter of justice. Such unanimous consensus is in itself sufficient proof that the doctrine has been infallibly proposed by the magisterium of the Church dispersed throughout the world.²²

Two formal magisterial acts bolster this conclusion. Pope Innocent III in 1208 required the Waldensians, as a condition of their reconciliation with the Church, to profess that “without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.”²³ The fact that this acknowledgment was required as a condition of communion is significant. Additionally, Pope Leo X in Exsurge Domine condemned as an error the proposition that the burning of heretics is against the will of the Spirit, implicitly affirming the legitimacy of capital punishment imposed by legitimate authority.²⁴

This essay does not assert that the revised text is heretical. That conclusion requires a level of certainty the essay does not claim to possess. What can certainly be said is that the evidence is serious, that it has been advanced by very orthodox theologians and philosophers, and that the faithful Catholic who finds himself unable to dismiss it is not acting in disobedience. He is instead taking seriously an obligation the Church has always recognized, that fidelity to the deposit of faith is not negotiable, even when the cost is to withhold assent from a teaching of the authentic magisterium.

Conclusion

The 2018 revision to the Catechism presents the faithful with a genuine and serious difficulty. This essay has argued that the first position of reconciliation fails on its own terms. The revision attempts to ground its conclusion in circumstantial reasoning, which has also been proved faulty, yet the language it ultimately employs, declaring the death penalty inadmissible because it is an attack on the inviolability and dignity of the person, is not circumstantial language. It is the language of intrinsic wrongness, and no amount of charitable reading can reconcile those two things within the same text.

The second position is the one this essay principally defends. The revision is authentic but non-infallible teaching. It contradicts both the classical Catholic theory of punishment, which holds retributive justice to be the primary end of punishment, and the immediately preceding paragraph of the Catechism itself, which affirms the state’s right and duty to impose proportionate punishment. Where two magisterial obligations conflict, the stricter one prevails. That is to say, the Catholic who withholds assent to the revision is being obedient to two thousand years of Tradition, attested in Holy Scripture, the Church Fathers, the consistent teaching of the popes, and the magisterial documents of the Church.

The third position, that the revision contradicts a teaching proposed infallibly through the ordinary universal magisterium, cannot be dismissed. The evidence is serious and has been advanced by serious theologians and philosophers. Whether or not one ultimately affirms that conclusion is a matter of private judgment. Regardless of where someone might fall on this issue, the Tradition is not silent, the contradiction is present, and fidelity to the fullness of Catholic doctrine demands that both be honestly acknowledged.

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Notes

1. Catechism of the Catholic Church, 2nd ed. (Washington, DC: United States Catholic Conference, 2000), §2267. ↩
2. Congregation for the Doctrine of the Faith, Professio fidei (1998); Second Vatican Council, Dogmatic Constitution on the Church Lumen gentium (21 November 1964), §25. ↩
3. Code of Canon Law, c. 749, §3. ↩
4. John P. Joy, “The Magisterial Weight of the New Text of the Catechism on the Death Penalty,” at The Josias, 5 August 2018, at www.thejosias.com. ↩
5. Congregation for the Doctrine of the Faith, Donum veritatis (24 May 1990), §§24-31. ↩
6. Joy, “Magisterial Weight.” ↩
7. Joy, “Magisterial Weight.” ↩
8. Congregation for the Doctrine of the Faith, 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), §1. ↩
9. Trent Horn and Timothy Gordon, “Dialogue: Should Catholics Support the Death Penalty?” Counsel of Trent, podcast audio, 24 October 2019, at www.catholic.com. ↩
10. Edward Feser and Joseph M. Bessette, By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment (San Francisco: Ignatius, 2017), 57. ↩
11. Thomas Aquinas, Summa theologiae, II-II, q. 64, a. 2, at New Advent, www.newadvent.org. ↩
12. Feser and Bessette, By Man Shall His Blood Be Shed, 52. ↩
13. Pope Pius XII, Address to the Sixth International Congress of Penal Law (3 October 1953), in Acta Apostolicae Sedis 45 (1953), 730. ↩
14. Pope Pius XII, Address to the Sixth International Congress of Penal Law, 730. ↩
15. Bureau of Justice Statistics, Mortality in State and Federal Prisons, 2001-2019 (Washington, DC: United States Department of Justice, 2021). ↩
16. “Convicted Killer Who Escaped Prison, Killed Woman in 1990 Set to Be Executed,” at WTSP, www.wtsp.com. ↩
17. CCC, §2266. ↩
18. Vatican I, Dei filius (24 April 1870), cap. 4, can. 3. ↩
19. CDF, Donum veritatis (24 May 1990), §§24-31. ↩
20. Joy, “Magisterial Weight.” ↩
21. Vatican I, Dei filius (24 April 1870), cap. 3. ↩
22. Joy, “Magisterial Weight.” ↩
23. Pope Innocent III, Profession of Faith Prescribed for the Waldensians (18 December 1208), in Enchiridion Symbolorum, ed. Heinrich Denzinger, §425. ↩
24. Pope Leo X, Exsurge Domine (15 June 1520), proposition 33. ↩