Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment

Avery Cardinal Dulles carefully lays out the Catholic Church's traditional teaching on capital punishment ("Catholicism and Capital Punishment," April), but unfortunately neglects any serious engagement with the text of the Church's most authoritative articulation to date on the subject, viz., no. 2267 of the 1997 edition of the Catechism of the Catholic Church. The text there indicates that something fundamentally new is happening in the Church's response to this thorny issue. Two novel points should be noted.

First, the Catechism's analysis strictly ties the death penalty to a model of self-defense. Whereas the Catechism's predecessor, the 1566 Roman Catechism, treats capital punishment under a subsection headed "exceptions" to the Fifth Commandment, and most systematic treatises, at least since Trent, follow Aquinas and treat it under the heading, "whether it is lawful to kill malefactors," no. 2267 places its treatment within a subsection entitled "legitimate defense" (defensio legitima). When Aquinas uses the related term "blameless defense" (inculpata tutela)--he never to my knowledge uses the term defensio legitima--he is not referring to a blameless act of capital punishment, but rather a blameless act of self-defense; and this self-defending act, if it results in the harm or death of the aggressor, must include neither as its end nor means the death or injury of the assailant. When the 1917 and 1983 Codes of Canon Law use the related term "legitimate defense" (legitima tutela), they, like Aquinas, are referring to legitimate killing in private acts of self-defense, implying the same limitations on intent. No. 2267 is clear as to the nature of a case falling under the designation "legitimate defense," namely, "cases in which the execution of the offender is an absolute necessity." But when the concept of "necessary defense" is found in theological literature prior to Vatican II in relation to questions of legitimate homicide, it is used almost exclusively to refer to the killing of aggressors by private persons in self-defense.

Finally, should there remain any doubt as to the text's meaning, no. 2267 refers to those who are rightly killed as "aggressors," not "criminals," "the condemned," "prisoners," and the like. An "aggressor" is one who attacks. To defend against an aggressor is to defend against one who is or soon will be "attacking." And the kind of defense no. 2267 refers to entails "rendering [the aggressor] ... incapable of doing harm." This language is a red flag to anyone familiar with the Church's tradition of justifiable homicide. "Rendering aggressors incapable of causing harm" is classical terminology used to refer to the lawful killing of aggressors by private persons in self-defense.

Second, capital punishment, as well as all acts of "legitimate" killing, are subsumed trader a model of "double-effect." No. 2263, the first in the subsection, introduces double-effect reasoning to show that not all actions which result in killing are intentional killing and forbidden by the Commandment; indeed, the teaching that controls the whole of the subsection is that what the Commandment excludes as murder is intentional killing. The subsection briefly departs from this motif in no. 2266 to introduce punishment's "primary purpose," i.e., redressing the disorder introduced by deliberate crime (i.e., retribution), but then implicitly returns to it in 2267, where a legitimate act of capital punishment (so called in the text) is defined, not in terms of "punishment" as specified in 2266, but rather in terms of "self-defense" as defined in sections 2263-2265.

The text insists that recourse to killing is legitimate if and only if the need to defend people's lives and safety against the attacks of an unjust aggressor can be met by no other means. According to the Catechism's own definition of punishment, the act defined as poena mortis ("capital punishment") in no. 2267 is not in fact an act of punishment, but rather an act of collective self-defense on the community's behalf by the state. Perhaps the clearest indication of this is seen when we compare the treatment of the 1992 edition of the Catechism with the revised text of the 1997 edition. In 1992 the Catechism taught that the Church "has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty" (no. 2266, emphasis added).

The gravity of the crime, we see, can be a legitimate basis for the infliction of the death penalty, that is, some crimes can be deserving of the death penalty, whether or not the criminal still poses an aggressor's threat. What is remarkable is that in the 1997 definitive edition the clause that reads "not excluding, in cases of extreme gravity, the death penalty," is suppressed.

Cardinal Dulles fails to contend with the fact that implicit in the Catechism's text is an understanding of the death penalty which limits its lawful infliction to conditions traditionally circumscribing legitimate killing in private self-defense. The new framework leads me to conclude that the Catechism is laying a theoretical foundation for a change (not "development" precisely understood) in the Church's teaching on the death penalty that would at minimum state that the exigencies of retribution (i.e., of the need to redress the disorder introduced by a criminal's crime) are never a sufficient condition for the inflicting of capital punishment. That is to say, death as a punishment is never legitimate.

E. Christian Brugger
Department of Religious Studies
Loyola University of New Orleans

When Pope Paul VI issued Humanae Vitae in 1968, many liberal Catholics rejected the encyclical and even the Church itself. The teaching of John Paul II on the death penalty may be the Humanae Vitae of some politically conservative, orthodox Catholics. Avery Cardinal Dulles' systematic analysis will be helpful to such persons. Addressing this subject "as a theologian," he shows the reasonableness of the Pope's position in the civil as well as the religious context.

In one respect, I suggest that Cardinal Dulles' analysis would have been stronger if it had been more explicit. He accurately describes the purposes of punishment as "rehabilitation, defense against the criminal, deterrence, and retribution." Evangelium Vitae, no. 56, and the Catechism of the Catholic Church, no. 2266, agree that "the primary aim" of punishment is the retributive one of "redressing the disorder introduced by the offense." A reading of the 1992 and the final 1997 versions of no. 2267 of the Catechism, however, leads to the conclusion that retributive and general deterrent reasons are no longer sufficient to justify use of the death penalty.

The 1992 version of no. 2267 said that "public authority should limit itself" to "bloodless means" if they "are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons." The final version, however, allows use of the death penalty only "if this is the only possible way of effectively defending human lives against the unjust aggressor. If, however, nonlethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means.... Today ... as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm--without definitively taking away from him the possibility of redeeming himself--the cases in which the execution of the offender is an absolute necessity are very …

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Publication information: Article title: Avery Cardinal Dulles and His Critics: An Exchange on Capital Punishment. Contributors: Not available. Magazine title: First Things: A Monthly Journal of Religion and Public Life. Publication date: August 2001. Page number: 7. © 2009 Institute on Religion and Public Life. COPYRIGHT 2001 Gale Group.

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