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Legatus Magazine

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Edward Feser | author
Oct 01, 2019
Filed under Columns

Capital punishment is not always wrong

If we respect people’s liberty, does it follow that we should never put anyone in jail? Is it hypocritical to imprison kidnappers, given that we criticize kidnappers precisely for taking away the freedom of others? Or consider private property. Do we undermine respect for people’s goods when we impose fines on wrongdoers or confiscate their ill-gotten gains?

The answer to these questions is, of course, No. The reason is obvious. There is a crucial moral difference between the innocent and the guilty. Kidnappers have, by committing their crimes, forfeited the right to their own freedom. Thieves have forfeited the right to their own property. There is no inconsistency or hypocrisy in taking away their liberty or holdings, because it is not taking away the freedom or property of people in general that is wrong. It is taking away the freedom or property of innocent people, specifically, that is wrong.

Everyone knows this. No one would commit the fallacy of supposing that if we want to be consistently pro-freedom or pro-property, we should abolish prisons and refund the fines paid by polluters and traffic violators. 

Strangely, though, many Catholics commit exactly this fallacy when it comes to being pro-life. They suppose that if someone opposes abortion and other forms of murder, then to be consistent one should also oppose capital punishment. Here too, the fallacy is to overlook the moral difference between the innocent and the guilty. The Church has never taught that all killing is wrong, any more than she has taught that it is always wrong to take away someone’s freedom or property. What the Church has taught is that killing the innocent is wrong.

That is why Scripture, the Fathers and Doctors of the Church, and the popes have consistently taught that capital punishment can in some cases be permissible (even if some of them also thought it better not to apply it in practice). Pope St. Innocent I taught that to regard capital punishment as intrinsically wrong would contradict divine revelation. Pope Innocent III required a heretical sect to affirm the legitimacy of capital punishment as a condition for reunion with the Church. The catechism issued under Pope St. Pius V taught that precisely because it safeguards innocent life, the practice of executing murderers, “far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder.” Pope Pius XII taught that murderers forfeit the right to their own lives.

Pope Benedict XVI, while still Cardinal Ratzinger – Pope St. John Paul II’s chief doctrinal officer – explained in 2004 that “if a Catholic were to be at odds with the Holy Father on the application of capital punishment… he would not for that reason be considered unworthy to present himself to receive Holy Communion” and that “there may be a legitimate diversity of opinion even among Catholics about… applying the death penalty, but not however with regard to abortion.” 

The reason is that unlike abortion, capital punishment is not inherently wrong, but wrong only under certain circumstances. And whether those circumstances hold is not a doctrinal matter, but a prudential matter about which even popes have no special expertise.

I would argue that Cardinal Ratzinger’s remarks still apply today, to Pope Francis’s opposition to capital punishment. There is no other way to interpret the pope’s views in a manner consistent with the teaching of his predecessors and with scripture and tradition.

EDWARD FESER is co-author, with Joseph Bessette, of By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment (Ignatius Press).


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