Is the Church Against Both Abortion and the Death Penalty?

It is not a rare thing for Catholic prelates to assert definitively that the Church opposes capital punishment. Some even liken the death of a defenseless aborted baby to that of a criminal duly judged by a competent court and condemned for a grave violation of the moral or juridical order. Such churchmen conclude that Catholics are obliged to reject not only abortion but the death penalty as well.¹

Cardinal Ratzinger’s Letter to the American Bishops

Such conclusions are misleading.
To the contrary, although it is very restrictive in the application of the death penalty today, the Catechism of the Catholic Church recognizes that “the traditional teaching of the Church does not exclude recourse to the death penalty.” In a letter to the American Bishops on denying Holy Communion to pro-abortion Catholic politicians, the then-Cardinal Ratzinger, now Pope Benedict XVI, made it clear that the death penalty is legitimate and cannot be placed on the same footing as abortion or euthanasia. He said:²

“[I]f a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. … [I]t may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia”³

The Teachings of Pope Pius XII

These words echo those of Pope Pius XII (1939-1958) in his speech of March 13, 1943 to the parish priests of Rome:

“God … the fountain of justice reserved to himself the right over life and death. … Human life is untouchable except for legitimate individual self-defense, a just war carried out with just methods, and the death penalty meted out by public authority for extremely grave and very specific and proven crimes”⁴

In another speech, the same Holy Father clarifies:
“Even when executing a condemned individual, the State does not have a right over the person’s life. The public authority is empowered to deprive a condemned man of his life to expiate his fault since by his own crime he divested himself from his right to life.”⁵

Both Old and New Testament Accept Death Penalty

In this respect, Avery Cardinal Dulles points out that both the Old and New Testaments support the use of the death penalty. He writes:

In the Old Testament the Mosaic Law specifies no less than thirty–six capital offenses calling for execution. … The death penalty was considered especially fitting as a punishment for murder since in his covenant with Noah God had laid down the principle, “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in His own image” (Genesis 9:6). …
In the New Testament the right of the State to put criminals to death seems to be taken for granted. Jesus himself refrains from using violence. … At no point, however, does Jesus deny that the State has authority to exact capital punishment. In his debates with the Pharisees, Jesus cites with approval the apparently harsh commandment, “He who speaks evil of father or mother, let him surely die” (Matthew 15:4; Mark 7:10, referring to Exodus 21:17; cf. Leviticus 20:9). When Pilate calls attention to his authority to crucify him, Jesus points out that Pilate’s power comes to him from above – that is to say, from God (John 19:11). Jesus commends the good thief on the cross next to him, who has admitted that he and his fellow thief are receiving the due reward of their deeds (Luke 23:41).⁶

The Constant Magisterium of the Church

The principle of the legitimacy of the death penalty imposed by competent authority after due process stems from Revelation and natural law and has always been consistently taught by the Magisterium of the Church and her theologians. The same Cardinal Dulles affirms:

“The Catholic magisterium does not, and never has, advocated unqualified abolition of the death penalty. I know of no official statement from popes or bishops, whether in the past or in the present, that denies the right of the State to execute offenders at least in certain extreme cases.”⁷

The profession of faith that Pope Innocent III (1198–1216) demanded from Waldensian heretics who denied the legitimacy of the death penalty, for example, contains this statement:
“Concerning secular power we declare 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.”⁸

Distinction between the Law and its Application

“The legitimacy of the death penalty is a matter of Law; its application is factual matter that depends very much on concrete circumstances of time and place, a people’s civic education, the diversity of times, etc.”⁹ However, even when one opposes capital punishment because of circumstantial reasons, one must not deny its legitimacy in principle or condition it to circumstances so narrowly as to impede or prevent it from being applied in practice. For in this case, real life would no longer be guided by principles and one would fall into the error of pragmatism.

In this article we limit ourselves to the realm of principle, since what we have in mind is to emphasize the philosophical and theological implications that result from an erroneous conception of penal justice.

Confusion about Punitive Justice…

Indeed, most objections of principle to the death penalty are due to a poor understanding of punitive justice and the purpose of punishment. Such misunderstandings come from the idea that the end of punishment is seen only as a means to protect society or correct the malefactor.

Yet, though punitive justice does have this twofold finality, it is not limited to these ends. Its most profound reason for being is the need for the guilty one to expiate for the crime committed and thus restore the juridical order undermined by his crime.¹⁰

… Making it Difficult to Understand Divine Justice

The expiatory goal of punishment is all the more important since its absence makes it difficult to understand divine justice and the dogma of Hell. For, since in the next life the need for protection and the possibility of conversion are nonexistent, eternal punishment can be understood only as expiation for the evil committed and reparation of transgressed divine justice, the triumph of good over evil.

Crime Violates the Juridical Order

Let Pope Pius XII himself explain these notions. Below are excerpts from his memorable speech at the Sixth Congress of International Penal Law, on October 3, 1953.¹¹ It is one of the most complete and systematic explanations by a pope on this matter (subtitles and bold emphasis are ours for clarity).

“Penal law is a reaction of the juridical order against the delinquent; it presupposes that the delinquent is the cause of the violation of the juridical order….

At the moment of the crime, the delinquent has before his eyes the ban imposed by juridical order: he is conscious of it and of the obligation it imposes; but, nevertheless, he decides against his conscience, and to carry out his decision commits the external crime. That is the outline of a culpable violation of the law.

Modern Penal Theories Incomplete

Most modern theories of penal law explain punishment and justify it in the last resort as a protective measure, that is, a defense of the community against crimes being attempted; and, at the same time, as an effort to lead the culprit back to observance of the law. In these theories, punishment may indeed include sanctions in the form of a reduction of certain advantages guaranteed by the law, in order to teach the culprit to live honestly; but they fail to consider expiation of the crime committed, which itself is a sanction on the violation of the law as the most important function of the punishment….

Yet, from another point of view, and indeed a higher one, one may ask if the modern conception is fully adequate to explain punishment. The protection of the community against crimes and criminals must be ensured, but the final purpose of punishment must be sought on a higher plane.

The Essence of Punishment: to Proclaim the Supremacy of Good over Evil

The essence of the culpable act is the freely-chosen opposition to a law recognized as binding; it is the rupture and deliberate violation of just order. Once done, it is impossible to recall. Nevertheless, insofar as it is possible to make satisfaction for the order violated, that should be done. For the fundamental demand of justice, whose role in morality is to maintain the existing equilibrium, when it is just, and to restore the balance when upset. It demands that by punishment the person responsible be forcibly brought to order; and the fulfillment of this demand proclaims the absolute supremacy of good over evil; right triumphs sovereignly over wrong.

Now we take the last step; in the metaphysical order the punishment is a consequence of our dependence on the supreme Will, a dependence which is written indelibly on our created nature. If it be ever necessary to repress the revolt of a free being and re-establish the broken order, it is surely here when the supreme Judge and His justice demand it. The victim of an injustice may freely renounce his claim to reparation, but as far as justice is concerned, such claim is always assured to him.

Need for Expiation, Protection of the Juridical Order

The deeper understanding of punishment gives no less importance to the function of protection, stressed today, but it goes more to the heart of the matter. For it is concerned, not immediately with protecting the good ensured by the law, but the very law itself. There is nothing more necessary for the national or international community than respect for the majesty of the law, and the salutary thought that the law is also sacred and protected, so that whoever breaks it is punishable and will be punished.

These reflections help to a better appreciation of another age, which some regard as outmoded, which distinguished between medicinal punishment – poena medicinalis – and vindictive punishment – poena vindicativae. In vindictive punishment the function of expiation is to the fore: the function of protection is comprised in both types of punishment.

Without Expiation, There is No Understanding of Divine Justice

Finally, it is the expiatory function which gives the key to the last Judgment of the Creator Himself, Who “renders to everyone according to his works” (Matt. 16:27; Rom. 2:6). The function of protection disappears completely in the after-life. The almighty and all-knowing Creator can always prevent the repetition of a crime by the interior moral conversion of the delinquent; but the Supreme Judge, in His last judgment, applies uniquely the principle of retribution. This, then must be of great importance.

Is The Death Penalty Contrary to Human Dignity?

Some argue that the death penalty is contrary to human dignity and that a criminal maintains his dignity in spite of his crimes, however bad they may have been.¹² This argument, however, establishes confusion between ontological order (human nature’s perfection) and moral order (conformity of human actions with right reason and divine law). While man never loses the ontological dignity of his nature, he does lose his moral dignity when he intentionally practices evil.

Furthermore, the argument of human dignity is not germane to the issue, because the object of justice is not human dignity, whether ontological or moral, but rather the voluntary acts of man in his relationships with others.¹³ No one is condemned to a just punishment because of dignity or the lack thereof, but rather for concrete actions practiced against the common good.

Avoiding Doctrinal Ambiguity

Whatever position one takes regarding the application of the death penalty in this or that place or historical circumstances, one must always be careful to prevent ambiguity from shrouding the clear principles of natural law and Revelation on this matter.

Abandoning the principle of the legitimacy of the death penalty and its conformity with natural law and Revelation paves the way to accepting principles condemned by the same natural and divine law: the use of condoms, justification of homosexual practices, euthanasia, and so on.
In this regard, Cardinal Dulles warns:

Arguments from the progress of ethical consciousness have been used to promote a number of alleged human rights that the Catholic Church consistently rejects in the name of Scripture and tradition. The magisterium appeals to these authorities as grounds for repudiating divorce, abortion, homosexual relations, and the ordination of women to the priesthood. If the Church feels herself bound by Scripture and tradition in these other areas, it seems inconsistent for Catholics to proclaim a ‘moral revolution’ on the issue of capital punishment.¹⁴