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November 06, 2002


Catholics and capital punishment: Who to follow — Justice Scalia or the pope?

Assessing the Catholic tradition on capital punishment

By Robert Fastiggi, Ph.D.

In the October 2002 issue of First Things, Supreme Court Justice Antonin Scalia responds to his critics, including Archbishop Charles Chaput, O.F.M. Cap., on the subject of capital punishment. Scalia believes that Pope John Paul II and the "Catechism of the Catholic Church" have broken with an alleged 2,000-year-old Catholic tradition that justifies the death penalty as adequate retribution for certain grave crimes.

In my judgment, though, it is Archbishop Chaput who raises the crucial question, viz.: Who is the better judge of the Catholic tradition — Justice Scalia or the living magisterium?

In trying to discern the nature of Catholic traditions, we must distinguish between theological traditions (i.e. those based on judgments of theologians) and magisterial traditions (i.e. those based on pronouncements by popes, bishops and councils). While many theologians have supported the use of the death penalty for the purpose of retribution, there have also been Catholic saints, including popes, who have urged that the death penalty not be used whenever possible (e.g. St. Augustine, Pope St. Gregory I and Pope St. Nicholas I). It is ultimately up to the magisterium to decide how Scripture and tradition apply to certain issues and whether the tradition in question is open to change or qualification. Actually, through the centuries, the magisterium has remained rather reserved on the subject of the death penalty. Thus, in 1976, the Pontifical Commission for Justice and Peace offered the following observations:

1) The Church has never directly addressed the question of the state's right to exercise the death penalty;

2) The Church has never condemned its use by the state;

3) The Church has condemned the denial of that right;

4) Recent popes have stressed the rights of the person and the medicinal role of punishment (Origins 6, Dec. 9, 1976, p. 391).

This judgment of 1976 was essentially affirmed by the commission of 12 cardinals and bishops appointed by Pope John Paul II (and chaired by Cardinal Ratzinger) to oversee the drafting of the "Catechism of the Catholic Church." Bishops throughout the Catholic world were involved in the review process. In the 1997 editio typica of the catechism, we are told that "the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor" (2267).

Justice Scalia, though, believes he understands the tradition better, and he can't understand why retribution alone is not sufficient for execution. The answer, though, is found in the commandment: "You shall not kill." Just as killing in a war demands "rigorous conditions of moral legitimacy" (CCC 2309) so does the use of the death penalty.

If there is a choice between killing someone and not killing someone, the choice not to kill is "more in conformity with the dignity of the human person" (CCC 2267). To take the life of a human person — even that of a hardened criminal — without necessity is a very serious matter. If such great care is taken "to respect every life, even that of criminals and unjust aggressors," all the more will it become obvious that "the commandment 'you shall not kill' has absolute value when it refers to the innocent person" ("Evangelium Vitae," 57).

While the teachings of "Evangelium Vitae" and the catechism on the death penalty are not infallible, even non-definitive judgments of the Roman pontiff are to be received with "religious submission of will and intellect" ("Lumen Gentium," 25). The Church now restricts the death penalty to instances when it is "the only possible way of effectively defending human lives against the unjust aggressor." Both the pope and the catechism also discern that such cases "are very rare, if not practically non-existent" (CCC 2267, EV 56).

If Justice Scalia believes there are instances when the death penalty is "the only possible way of effectively defending human lives against the unjust aggressor," let him make his case and remain within the boundaries of what the pope and the catechism teach. Then, his disagreement would remain on the level of prudential application of moral principles rather than a challenge to the principles themselves. Up till now, however, Scalia has challenged the very moral principles articulated by the pope and the catechism regarding the use of the death penalty. This is where he goes too far.

Archbishop Chaput and others are justifiably concerned when a Catholic as prominent as Scalia directly challenges a teaching of the Roman pontiff, even when the teaching is not per se infallible. If such lack of respect is shown towards the magisterium in regard to capital punishment, other ordinary teachings of the Church can likewise be resisted. Let us hope that Justice Scalia, who is such a great supporter of the Church's doctrine against abortion, will reconsider his rejection of what the pope and the catechism teach on capital punishment. If he chooses to remain fixed in his opposition, the choice is clear: faithful Catholics should follow the pope rather than Justice Scalia on this subject. The pope, after all, is the "Vicar of Christ and pastor of the whole Church" (LG 22). Robert Fastiggi, Ph.D., is associate professor of systematic theology at Sacred Heart Major Seminary in Detroit, Mich.


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