The Devil Is in the Details: Pope Francis Changes Catechism on the Death Penalty

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by Church Militant  •  ChurchMilitant.com  •  August 3, 2018   

Canon lawyer: Church's prudential judgment changed, not doctrine

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By Rev. Michael X., J.C.L.

Through publication of the Aug. 3 edition of L'Osservatore Romano, the Vatican's newspaper, Pope Francis has ordered to be made effective one of the biggest changes ever in the 2,000-year-old history of the Roman Catholic Church: its official position on capital punishment. Yesterday, governments across the Earth were authorized by the Catholic Church to execute criminals found guilty by regular due process according to the laws of their lands. Today, that is no longer the case. The application of the death penalty by a civil power is officially deemed by the Roman Catholic Church to be morally reprehensible in every circumstance, without exception, as a matter of prudential judgment.

While this change to the official position of the Church is nothing less than monumental in its scope of concrete impact, it is not, however, officially purported by the Holy See to consist of a solemn ex cathedra definition, exercise of the Ordinary and Universal Magisterium or definitive act on the part of the Supreme Pontiff. However, this change will have a profound lasting and dampening effect on the application of capital punishment by governments Catholic and non-Catholic around the world, if one judges by the lessons of history.

 

Six texts released by the Holy See are key for a Catholic to understand the nature, authority, doctrinal value and canonical effect of this modification to the Church's official position. They are the following:
  1. Bulletin of the Holy See Press Office of Aug. 2, 2018
  2. Rescript ex Audientia Ss.mi of May 11, 2018
  3. New text of paragraph no. 2267, Catechism of the Catholic Church 1997
  4. Letter of the Congregation for the Doctrine of the Faith to the Bishops of Aug. 1, 2018
  5. L'Osservatore Romano's print edition
  6. Commentary in L'Osservatore Romano of Abp. Rino Fisichella of Aug. 3, 2018

On Thursday, Aug. 2, 2018, the Holy See Press Office announced to the press corps of the world through its bulletin of that day that Cdl. Luis F. Ladaria, S.J., prefect of the Congregation for the Doctrine of the Faith, had issued a rescriptum ex Audientia Sanctissimi ("rescript from an audience of the Most Holy Father") following an audience granted by Pope Francis to him held on May 11, 2018. The text of the rescript was released in Italian, its original language, together with translations of the text into seven other languages — including Latin.

The rescript states five essential things: One: that the Pope approved the new formulation of paragraph no. 2267 of the Catechism of the Catholic Church included in the same rescript; Two: that he ordered the new Italian-language formulation to be translated into seven languages; Three: that he ordered the new formulation to be inserted in said languages into all editions of the Catechism; Four: that the vehicle of promulgation of the new formulation of the Catechism is to be L'Osservatore Romano; and Five: that the new formulation will enter into effect on the same day as the rescript's publication in L'Osservatore Romano, which is today, Aug. 3, 2018.

The papally approved English-language translation of the new formulation of paragraph no. 2267 states:

The death penalty

2267. Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

Consequently, the Church teaches, in the light of the Gospel, that "the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,"[1] and she works with determination for its abolition worldwide.

_______________________

[1] Francis, Address to Participants in the Meeting organized by the Pontifical Council for the Promotion of the New Evangelization, 11 October 2017: L'Osservatore Romano, 13 October 2017, 5.

The release of the rescript was accompanied by a Letter of the Congregation for the Doctrine of the Faith addressed to the Bishops regarding the new redaction of n. 2267 of the Catechism of the Catholic Church on the death penalty. The letter, signed and dated Aug. 1, 2018 by the cardinal-prefect and archbishop-secretary of the Congregation, is actually a text that was drafted and voted upon by the members of the Congregation on June 13, 2018 and subsequently approved by Pope Francis on June 28, 2018. The letter serves as an official commentary of the new formulation of the Catechism, especially seeking to bolster the theological premises and magisterial precedents for the assertion of the Congregation for the Doctrine of the Faith that the change promulgated by Pope Francis is "in continuity with the preceding Magisterium, bringing forward a coherent development of Catholic doctrine" and "an authentic development of doctrine, which is not in contradiction with the anterior teachings of the Magisterium" (L'Osservatore Romano, Aug. 3, 2018, p. 8), with reference made to the Commonitorium of St. Vincent of Lérins.

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Abp. Rino Fisichella

The sole official text, to date, therefore, of the new formulation is that published on page eight in Italian in L'Osservatore Romano of today, Aug. 3, 2018. The fact that the Latin text is presented as a "translation" and not the original by the Holy See Press Office, despite having been completed and disseminated in the same organ of promulgation, is another marked departure from the Stylus and praxis Romanae Curiae of centuries.

Apart from the change itself in the Church's judgment on the death penalty, the most striking development is actually the commentary of Abp. Fisichella of the Pontifical Council on the New Evangelization, who goes further than Francis or the Congregation for the Doctrine of the Faith when he writes (my translation) that "the Church ... explicitly condemns the death penalty. ... This passage shows in all its evidence that one is before a true dogmatic progress with which content of the Faith that has progressively matured to the point of making understood the unsustainability of the death penalty in our days is explicated."

Fisichella, by employing the theological terms of art "dogmatic," "safeguarding the Deposit of Faith," "truth of faith," "history of dogma," etc. in his commentary on the change clearly opines that the change in the Church's position on the death penalty is of the highest doctrinal value, going so far as to state that "intentionally suppressing a human life is contrary to Christian Revelation."

All of the above having been sifted and said, the nature, authority, doctrinal value and canonical effect of this modification to the Church's position are now humbly proposed.

The Nature of the Change. Paragraph no. 2267 of the Catechism (CEC), the actual text of the new formulation is unsettling and ambiguous: unsettling because the term "inadmissible" not being a term of art consecrated by the centuries by the Magisterium, or the Church's canonists, dogmatic or moral theologians lending itself to clarity of meaning, renders the plain attempt to decipher the substance of the change to be frustrating; ambiguous, because the term "inadmissible" can be interpreted to mean that a moral act is either intrinsically or extrinsically evil. Which of the two natures of the moral act the Pope really intended to approve as constituting the change in position is the real nodus, and indeed unanswered question, pertaining to the new formulation.

According to Regula juris XXX in Sexto, "In obscuris, minimum est sequendum" ("In things which are obscure, the minimum is to be followed") promulgated by Pope Boniface VIII in 1298 and still a guidepost of sound canonical interpretation according to canons 17 and 18 of the Code of Canon Law, the canonist cannot conclude that the Magisterium has imposed the stricter interpretation regarding the formulation, namely that application of the death penalty is morally illicit in principle, or "intrinsically evil." 

For that reading of the new text to be reached, one must turn to the "devil in the details," namely a footnote — just like in Amoris Laetitia — found within the text of the rescript itself: the reference made to Pope Francis's "Address to Participants in the Meeting organized by the Pontifical Council for the Promotion of the New Evangelization, 11 October 2017: L'Osservatore Romano, 13 October 2017, 5" wherein the Pope, as referenced by Fisichella, states that the death penalty "is in itself ("in se") contrary to the Gospel." However, according to the common doctrine of both canonists and theologians, only that which is principally and directly taught or proposed for acceptance by the Magisterium to the entirety of the members of the Catholic Church is canonically "proposed" for the faithful's adherence — not a footnote or reason given for that which is taught.

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CDF Prefect Cdl. Luis Ladaria

Hence, the stricter assertion of Pope Francis enunciated on Oct. 11, 2017 cannot be said to have been promulgated through the change made to paragraph no. 2267 of the Catechism. Consequently, the less strict interpretation of the change to the content of the teaching of the Catechism is that the practical application, not liceity or "admissibility" in principle, of the death penalty by a State by judgment after due process, is now entirely proscribed in the "prudential judgment" of the Magisterium (cf. Congregation for the Doctrine of the Faith, Instr. Donum Veritatis on the Ecclesial Vocation of the Theologian, May 24, 1990, no. 24 referencing “certain contingent and conjectural elements").

The Author of the Change. The overall authority over the Church's change in prudential judgment regarding the admissibility of the death penalty is Pope Francis, the Roman Pontiff. The most senior but subordinate officials of the Roman Curia serve by papal appointment, therefore papal authority. Technically-speaking, however, it is actually the cardinal-prefect of the Congregation for the Doctrine of the Faith who is the author of the Rescript of August 1, 2018, and hence substantive change that has been made to paragraph no. 2267 of the Catechism. This is the only conclusion that a canonist can reach until such time that it be shown, if it can, that Pope Francis approved in forma specifica the change for which Cdl. Ladaria requested approval. Approval “in forma specifica” is a Vatican mechanism by which a pope assumes authorship of a text drafted by an official subordinate to him, even though it be signed by the lower official. The terms of art, in forma specifica approbavit are required by Vatican regulations to be printed on any text signed by a subordinate official in order for any document that the latter has signed to be interpreted as having been assumed in authorship by the Pope. (Cf. Regolamento Generale della Curia Romana, art. 126, §4, April 30, 1999, AAS 1999, 680). If papal approval is not granted in forma specifica, then it is deemed in canon law to have been given in forma communi. Consequently, one cannot, strictly speaking assert in canon law that the Pope is the author of the change that has been made to the Catechism, even though it has been confirmed by Cdl. Ladaria in the newly released Letter of the Congregation for the Doctrine of the Faith to the Bishops of August 1, 2018 that Pope Francis did request that paragraph no. 2267 be modified according to his indications. Cf. Letter, in OR, August 3, 2018, page 8.

Doctrinal Value of the Change. Since article 24 of the instruction Donum Veritatis on the Ecclesial Vocation of the Theologian appears to be the most applicable magisterial text, the nature of the change of paragraph no. 2267 CEC is that the Roman Catholic Church has modified her prudential judgment on the "admissibility" of the death penalty by the State, servatis servandis, from that of "very rare, if not practically non-existent" (cf. Editio typica of the Catechism of 1997) to "inadmissible," with the terms of the prior text of no. 2267 now having been obrogated or canonically eliminated. Use of the theological term of art "consequently" to begin the final paragraph of the new formulation reveals that the three concepts that lead up to the setting forth of the new position, namely "awareness, etc." "understanding, etc." and "more effective systems, etc." constitute indeed only reasons that are indirectly proposed in order to support the conclusion of the change in prudential judgment regarding the death penalty that is now directly proposed, namely that "the death penalty is inadmissible."

Canonical Effect of the Change. Since prudential judgments are referenced expressly in substance in canon 747, § 2 of the Code of Canon Law ("to render judgment concerning any human affairs insofar as the fundamental rights of the human person"), and since one cannot be bound by the stricter interpretation positing that the Roman Pontiff has ordered that the death penalty be held henceforth as an intrinsically evil act, by reason of the ambiguity of the novel term "inadmissible," the norms of canons 750, §§ 1 or 2, or 752 CIC, cannot be applied to bind the Catholic faithful under penalty, neither pursuant to canons 1364 or 1371, 1°, because we're not dealing here with a doctrine governed by canons 750, § 2 or 752, nor in conformity with canon 1371, 2° CIC, because no singular precept or prohibition imposed upon a Catholic with canonical admonition having been duly issued to him and violated is at issue, for the new formulation approved by Pope Francis enunciates a change in the prudential judgement of a general nature contingent upon perceived changes in the temporal circumstances of the State's ability to safeguard the peace.

The Holy See no longer asserts that the execution of criminals is, in practice, admissible.

In sum, the change ordered by Pope Francis to be made in paragraph no. 2267 to the Catechism of the Catholic Church is not so much a change in the teaching of the Church on the death penalty, as opposed to a change in the prudential judgment on the morality of application of the death penalty to concrete cases, such that now, as opposed to yesterday, the Holy See no longer asserts that the execution of criminals is, in practice, admissible. This change in judgment would appear to be effectively governed by canon 747, § 2 of the Code of Canon Law, due to the ambiguity of the new formulation promulgated by Pope Francis. (R.J. XV in Sexto, "Odia restringi et favores convenit ampliari" — "Things which are odious are to be restricted, and those which are favorable are to be broadened in interpretation.")

Until the Roman Pontiff should dispel the ambiguity of the terms he has approved for the change, according to centuries of official and established rules of canonical interpretation, the undersigned canonist cannot reach an interpretation of the doctrinal value and canonical effect of the new formulation of the Catechism that would be more onerous for anyone of good will to observe, neither does it appear to be possible for any competent ecclesiastical authority to impose an obligation upon a Catholic to adhere to a stricter interpretation, viz. that application of the death penalty is now proposed by the Church as being intrinsically evil and governed by the norms of canons 750, §1, § 2, or canon 752 CIC such that violation of said obligation would lead to the valid and licit incurrence or imposition of a canonical penalty.

Without proper identification of the "devil in the details"; regarding the change that has been made to the content of the Catechism — namely the circumscribed impact of the Address of October 11, 2017 referenced in the footnote of the Rescript to the new formulation of paragraph no. 2267 CEC, together with the fact that the technical author of the change is the Cardinal-prefect of the Congregation for the Doctrine of the Faith — Catholic faithful may run the risk of reaching dramatic conclusions that are unsupported in canon law.

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