A Defense of the Church’s Teaching on Capital Punishment.

The Catechism of the Catholic Church teaches that:

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. It is asked why the Catechism does not explicitly state that capital punishment is intrinsically evil, if it
means to teach that CP must now be held to be intrinsically evil by teaching that it is inadmissible.

When the Catechism speaks of an act as morally disordered, intrinsically disordered, it affirms that such
an act is intrinsically evil.

But when the Catechism opts to predicate inadmissibility of Capital Punishment, it has made a clear
choice for another type of language.

What distinction is being made here?

Everyone recognizes that the Catechism in affirming the inadmissibility of CP represents a development
of doctrine in the sense that it goes beyond what the Church formerly taught about the matter.

The very possibility of doctrinal development coincides, however, with the possibility of new doctrinal
formulations which in some sense go beyond existing formulations without contradicting them, the
possibility of new formulations which dissipate misunderstandings and errors which had infected and
weakened the Church’s self-understanding and clarify the true sense of the Church’s certain and
perennial teaching, rooted in the Deposit of Faith.

Yet in saying that it is generally recognized that the Catechism’s formulation goes beyond previous
doctrinal formulations regarding CP, we should also note that certain commentators have affirmed
that it contradicts them: i.e., that it contradicts what the Church has always taught.

Other commentators have expressed the opinion that the Catechism’s formulation is ambiguous.
According to these commentators the affirmation of the inadmissibility of CP might might be
understood as a categorical affirmation that Capital Punishment is unacceptable according to natural
law; but on the other hand one might think of inadmissibility as referring to contingent circumstances
according to which CP is (no longer or not at the present juncture of history) admissible.

According to this latter interpretation the Catechism would represent no significant development with
respect to what had previously been taught namely that practically speaking there was no longer a
pressing justification for capital punishment due to recent developments of the possibilities of state and
society.

But this is clearly not the intention of the text. The text does not speak in a qualified way about Capital
Punishment. It affirms that the state has no right to inflict capital punishment. What this clearly means
is that the state has never had that right. And it clearly means that it will never have it; and that all this
flows from principles of natural law which are not transitory.

The Catechism does not tell us that in the contemporary world, or for the modern state Capital
Punishment is inadmissible. It teaches simply that it is inadmissible, simpliciter.

Is capital punishment then intrinsically evil?

Here we need to avail ourselves of the important distinction and development of doctrine that John Paul
II formulaties in Reconciliatio en Penitentiae: the doctrine of structures of sin, and the distinction
between sin and structures of sin1.

1
“The third meaning of social sin refers to the relationships between the various human
communities. These relationships are not always in accordance with the plan of God, who intends
that there be justice in the world and freedom and peace between individuals, groups and peoples.
Thus class struggle, whoever the person who leads it or on occasion seeks to give it a
theoretical justification, is a social evil. Likewise obstinate confrontation between blocs of nations,
between one nation and another, between different groups within the same nation all this too is a
social evil. In both cases one may ask whether moral responsibility for these evils, and therefore
sin, can be attributed to any person in particular. Now it has to be admitted that realities and situations
such as those described, when they become generalized and reach vast proportions as
social phenomena, almost always become anonymous, just as their causes are complex and not
always identifiable. Hence if one speaks of social sin here, the expression obviously has an
analogical meaning. However, to speak even analogically of social sins must not cause us to
underestimate the responsibility of the individuals involved. It is meant to be an appeal to the
consciences of all, so that each may shoulder his or her responsibility seriously and courageously
in order to change those disastrous conditions and intolerable situations.” Reconciliatio et Poenitentiae,
n. 16
But also in Sollicitudo Rei Socialis John Paul II writes as follows:
“Obviously, not only individuals fall victim to this double attitude of sin; nations and blocs can do so too.
And this favors even more the introduction of the "structures of sin" of which I have spoken. If certain
forms of modern "imperialism" were considered in the light of these moral criteria, we would see that
hidden behind certain decisions, apparently inspired only by economics or politics, are real forms of
idolatry: of money, ideology, class, technology.
I have wished to introduce this type of analysis above all in order to point out the true nature of the
evil which faces us with respect to the development of peoples: it is a question of a moral evil, the fruit
A sin is an actus humanus; CP is not an actus humanus. It does not have a singular man as its subject, but
rather its formal subject is the state.

Capital Punishment is, moreover, not an act, but an institution, a historical institution.

It is not a sin but a sinful structure, a structure of sin. One is using the term sinful according to analogy,
but legitimately.

This is why the catechism does not speak of CP simply as a sin, that is, as a intrinsically disordered act.

If one person says “Sometimes Capital Punishment is legitimate” he is referring to the act. But when the
Catechism tells us that the Church works with determination for the abolishment of Capital Punishment
worldwide the Catechism is speaking of an institution rather than an act.

An act cannot be abolished, but an institution can be abolished.

If the Church works with determination for the worldwide abolishment of Capital Punishment, we can
be certain that she regards Capital Punishment as a sinful structure, as something evil.

The state is not some occult reality but is something whose form society brings about and constitutes;
and since society is composed by men, the state is something that men decide about and bring into
being.

If CP is inadmissible it is because men have made it inadmissible, not by positive lawgiving, but by the
creation of a state which by its very nature makes CP inadmissible and according to which the question
of the admissibility of CP can arise.

Man is the Legislator of Natural Law. The teaching of the inadmissibility of capital punishment does not
conflict with Natural Law, but rather forms part of it. Man is the subject of Natural Law.

The Catechism’s affirmation that CP is not admissible clarifies what the Church has taught previously.

Only in the modern age has the question of the admissibility of Capital Punishment crystallized: Is
Capital Punishment an admissible practice for the state.

The Catechism develops the traditional doctrine, explains it more clearly, explains it in language that is
both luminous for contemporary man and luminously reflects the Evangelical principles on which it is
founded, the Evangelium Vitae.

But this development presents difficulties: Is it so that the Church has now prohibited the death penalty?

No because the Church had not in times previous permiited it.

The Church’s moral teaching does not consist of a series of positive prohibitions and permissions.

Law is something deeper. Man is the subject of Natural Law, and the Church is its Interpreter, for as
John Paul II affirmed “Man is the way of the Church.”

of many sins which lead to "structures of sin." To diagnose the evil in this way is to identify precisely, on
the level of human conduct, the path to be followed in order to overcome it.” (n. 37)
Where legalism rules men will tend to interpret the Church’s moral and social teaching as a series of
arbitrary permissions and prohibitions. Law will be reduced to positive law.

Where legalism rules God’s commandments will also be seen as purely positive commandments and
purely positive prohibitions. Natural law will be seen as a synonym for God’s purely arbitrary
permissions and prohibitions. In other words natural law will be obscured in its very nature.

2. The Church’s teaching that CP is not ad is similar to what the Church teaches about war, its teaching
that war is not admissible.

The Church’s teaching about war has been misunderstood just as its teaching about Capital Punishment
has been misunderstood.

“Blessed are the peacemakers” is the teaching of Jesus. But some Christians have tried to erase or
minimalize what the Church teaches about the inadmissibility and evil of war.

It is true that war, like Capital Punishment, is not an actus humanus a personal act and thus is not a sin
in the formal sense of the word.

But this does not reduce the evil of war, just as it does not reduce the evil of Capital Punishment to note
that Capital Punishment is something that formally speaking is realized by the state rather than by a
personal subject.

War like Capital Punishment is an evil realized by many man acting together in concert. This, however,
does not make it less evil.2 Holy Scripture and Christian tradition remind us that the state can become
the instrument of evil, the enemy of man, and the persecutor of God’s Holy People.

The Church teaches that war is no longer an option; but beyond teaching that it is merely not
permissible in current circumstances it teaches that it is never permissible. It is never the good solution,
never an appropriate way to resolve differences.

Just as there has been a development of doctrine regarding capital punishment so has there been a
development of doctrine regarding war. The Church’s rejection of war has become more clear since the
World Wars of the Twentieth Century, since the Holocaust, since Hiroshima and Nagasaki, since the
Vatican Council and since the formulations of the magisterial teaching regarding war and peace of all the
recent Popes.3

2
The Christian and Post-Enlightenment West came, by a remarkable development of moral consciousness and
Natural Law, to reject Institution of Slavery.

When today our society confronts the issue of abortion it is necessarily confronting Institutional Abortion and not
simply a question of personal morality; abortion has, largely and especially in the affluent West, become identified
with Institutional Abortion; but even and perhaps especially in the Third World we can no longer speak of the evil
of abortion and ignore its social causes and social effects. By hignlighting the social aspect of the question of
abortion we do not mimimalize its moral dimension. The proper moral dimension of the question of abortion is not
lost, but rather saved, by taking into account the social and institutional aspects surrounding the question of
unwanted pregnancies and the tragedy of abortion.
3
For a synthesis of this teaching, see The Compendium of the Social Doctrine of the Church, Ch. 11, III
But if one closely analyzes the traditional teaching of the Church one will find that the roots of what the
Church is now teaching about both capital punishment and war is already present in that traditional
teaching.

A teaching that a country has a right to self-defense and thus a right to maintain armed forces does not
entail that a country has a right to wage war; neither does the (conditional) right of a private citizen to
bear an arm foreseeing a potential need for a means of self-defense mean that he has the right to kill
someone.

One can argue that in certain thinkable circumstances a person has a right to kill an assailant in self-
defense and in prevision of such a conceivable situation a private citizen might obtain a firearm; similarly
one can argue that the state has in certain thinkable circumstances the right to kill he whom it judges to
be guilty--in self-defense, that is, in defense of those values that the state is bound, by its own nature, to
defend.

Though the state is strictly speaking not a person, it may be said to be bound to have certain moral
duties (duties which properly speaking belong to those to whom the authority of the state has been
entrusted) and to these duties correspond what are, correspondingly, again in a certain respect, rights.

But that something is in very specific conceivable circumstances a duty and a right does not make it
always and simpliciter a duty and a right.4

This is not because specific circumstances can change something which is intrinsically wrong into
something which is morally permissible, but because what one is describing in those conceivable specific
circumstances is really something substantially different from the moral act considered by the so called
“general” rule. One is not comparing a norm with a specific instance in which that norm will be applied
or not applied. One is comparing distinct norms because one is comparing acts which differ as to their
object and thus differ essentially. One is not introducing an antinomian ethics.5

4
The taking of a life motivated by exigencies of the common good in special circumstances is reserved to the state
and its representatives; the private system may not presume to act. But in special situations it may be necessary
for the private citizen, and in these special circumstances, he becomes per actum, defensor of the common good.

5
In the Fourth of their self-styled “Dubia”, Cardinals Brandmüller, Burke, Caffarra and Meisner ask if
“after the affirmations of Amoris Laetitia (302) on “circumstances which mitigate moral
responsibility does one still need to regard as valid the teaching the teaching of St. John Paul II’s
encyclical Veritatis Splendor, 81, based on sacred Scripture and on the Tradition of the Church,
according to which “circumstances or intentions can never transform an act intrinsically evil by
virtue of its object into an act ‘subjectively’ good or defensible as a choice.”

This question is answered in the very text of Amoris Laetitia

AL 302 does not posit (or suggest) the existence of acts which are at once intrinsically evil on
account of their object and yet “ ‘subjectively’ ” good (whatever that would mean) or “good or
defensible as a choice” but rather concerns those circumstances which, as the setting of moral
actuation, must be considered with regard to acts realized in that setting, because they could bear
upon the substantial nature (the object) of those acts or otherwise mitigate culpability.

Circumstances do not transform an act which is evil in itself into an act which is subjectively good or
defensible as a choice, but it can be necessary to take into account circumstances (in the sense of the
setting) in order to discern the object of a moral act.

Before being able to make a necessary practical judgement regarding a person’s moral acts or his
state of soul, the pastor must take into account circumstances, if such are present, which will
diminish a person’s culpability. This justifies the distinction which AL insists upon between an
objective state of sin (for instance an irregular situation) and the subjective state of sin (that is the
soul’s being in mortal sin or being in the state of grace). Amoris Laetitia 302 is simply stating
Catholic moral teaching. So what reason is there for suggesting that it teaches something against
Catholic moral teaching?

Consciousness of mortal sin excludes one from the sacraments of the Church. The pastor has no
business telling a soul that it is in mortal sin when he has no grounds to do so. The pastor thus must
take circumstances into account. If mitigations make it evident that one cannot speak of mortal sin
the pastor should not speak to the soul as if he were in mortal sin. To do this would be to pervert the
very essence of Christian morality, making everything depend on merely exterior behavior and the
following of merely exterior rules.

Amoris Laetitia is not suggesting any heterodoxy here; it is rather the authors of the Dubia that are
presupposing a false understanding of Catholic moral teaching, in which acta humana, moral acts, are
confused with mere exterior behavior.

In the second of the “Dubia” it is asked if after AL we are still held to believe that there are certain
acts which are intrinsically and always wrong, according to the teaching of John Paul II in Veritatis
Splendor. AL paragraph 304 is cited as the text which supposedly calls this into doubt. But AL 304
does no such thing. It simply tells us that

“It is reductive simply to consider whether or not an individual’s actions correspond to a

general law or rule, because that is not enough to discern and ensure full fidelity to God in
the concrete life of a human being.”

In other words the pastor cannot be content by mere examination of exterior compliance
with general laws or rules. If he does so once again he will finish by perverting Catholic
moral teaching about moral law, about conscience and about moral acts.
According to St. Thomas the moral species of an act derives from its object.

Killing in self-defense does not have the same object as murder. The moral acts constituting and
realizing just war do not have the same object as those constituting (unjust) war, war “in general.”

Amoris Laetitia affirms that certain acts might be held, if judged according to a merely exterior
criterion—the criterion of the rigorists—to be in violation of the Sixth Commandment and yet not be
in violation of the Sixth Commandment. This teaching of Amoris Laetitia is confirmed by Pope
Francis when he gave magisterial status to Buenos Aires Guidelines (placing them in the Acta
Apostólica Sedis together with the letter of the Pope confirming their sound teaching). The only
coherent way of interpreting the Buenos Aires Guidelines is as a rejection of the rigorist teaching that
would deny the possible existence of such acts, as a rejection of the rigorist interpretation of the Sixth
Commandment.

And this is similar to what the Church has long taught with regard to what is called “Just War” and it
is similar to what the Church has long taught about the taking of life when that is morally demanded
by exigency of the common good.

Such actuations may seem to be in violation of the God’s Commandment, but in fact they are not.
They differ substantially from acts violating the Fifth Commandment, because they have a distinct
object and thus have a different moral species-- although the distinction is not made easily, which
difficulty is reflected in the fact that we have no ready-made terminology to describe it.The Church
has a long history of rejecting rigorism, and embracing mercy as the central principle of her pastoral
action; to embrace mercy it is necessary to reject rigorism.

An objection to the parallel between AL and the Church’s teaching about self-defense is that AL
deals with personal morality and thus acta humana in the strict sense whereas the questions about
self defense (Just War, CP) are essentially political and thus prudential.

But the marriage act is in fact the social act par excellence, and if a couple determines that a certain
situation (AL 298, fn 329) must be tolerated for the good of the children (which is essential part of
the good of matrimony) the decision in this regard is also prudential and social without ceasing to
have a clear moral character for those who make the decision . The moral character of the decision is
determined by the object of the act, not the mere material object but the formal object.

These are difficult cases: not only the case referred to by AL but also the case of self-defense.
The acts constituting a legitimate taking of life for the sake of the common good do not have the same
object as those of capital punishment “in general”; capital punishment “in general” is not permissible.
That is what the Church now clearly teaches. And if one thinks carefully it has never permitted it. The
Church has clarified t--and not changed--her teaching; and this clarification corresponds fully to the
criteria that establish an authentic development of doctrine.

A private citizen has no right simpliciter to kill an assailant.

Soldiers involved in waging “just war” have no right to kill innocents, but only enemy combatants judged
not to be innocent, but rather guilty, by the very fact of being objectively the enemy, by the fact of being
wrongdoers opposed to the common good.

It is argued by proponents of capital punishment that the state’s right to punish crimes goes beyond self
defense.

But to say this is to forget the distinction between divine and human law. One divinizes the state.

The state does have the right to punish crimes, but this right corresponds exactly to its right to self-
defense, its vital right, namely, its constitutive ordination to the common good.

But the state’s very ordination to the common good means that the state MUST have as its
fundamental commintment respect the rights of all, especially the most fundamental rights (life,
religion..), and those the rights which are precarious and threatened.

It is true that If the state has the duty to defend life it must be able to of take life, in some conceivable
circumstances, in order to realize its fundamental task. Both “just war” and “capital punishment” can
only be justified on this basis.

Defenders of Capital Punishment6 insist that Capital Punishment cannot be reduced to self-defense, and
that the Church has defended Capital Punishment as punishment and not merely as self- defense. Just as
God punishes sin so can the state punish violations of the law.

But the introduction of the concept of punishment clarifies rather than altering the moral analysis of
capital punishment.

The state can and must punish inasmuch as it is in charge of the common good; but the state is not
simply and absolutely in charge of the common good, but is rather ordained to the common good and
its servant.

And that is why Capital Punishment is NOT simpliciter the right of the state.

(This however does not prevent one from saying that Capital Punishment is the state’s business rather
than the business of individual citizens: natural law condemn lynching and vigilante justice.)

Special circumstances may thus justify capital punishment, but this does not mean that capital
punishment in general is permissible.

But we should henceforth no longer speak of “capital punishment” because the term (not the concept)
has become confusing. The modern state no longer permits us to speak of capital punishment, because

6
For instance Edward Feser in By Man Shall His Blood be Shed, ch. 1
capital punishment will be understood as a prerogative or right of the state, because it will be
misunderstood.

The Church has changed the language of its discourse regarding both war and capital punishment. But
here we must express ourselves with care: the Church has changed its language but not its doctrine.

The Church no longer speaks of a “Just War Doctrine” but this does not mean that the Church has
abandoned its former doctrine regarding war; similarly the Church now affirms that Capital Punishment
is not permissible, but this does not change the real content of what the Church has taught about the
prerogatives of the state deriving from its ordination to the common good and the possibile realization of
special unforeseen circumstances that may demand unforeseen applications of the principle of the
primacy of the common good.

The doctrine of the Church in these and other matters has developed historically without changing qua
doctrine.

Pope Francis has clarified the Church’s teaching in the matter of Capital Punishment; but he was also
responsible for the important doctrinal affirmation of the principle of the discernment of cases in Amoris
Laetitia, and this principle is also applicable to the decisions made by those responsible for the common
good in special and unforeseen circumstances. It is clear thus that the impermissibility of Capital
Punishment must not be understood in a rigorist sense.

Similar the fact that the Church embraces the pacifism of Jesus does not mean that the Church
understands pacifism as a rigorist doctrine.7

7
The Church, and especially the Petrine Office, has a long history of rejecting rigorist interpretations of morality:

a) Rome sided with St. Alphonsus against the rigorist Jansenists (cfr. the rejection of tutiorism and the Church’s
nuanced response to the diverse systems of probabilism).

b) Pope Cornelius opted for a merciful approach towards those Christians who had under the pressure of
persecution succumbed and renounced the faith (taking a position similar to that outlined by Pope Francis in
Amoris Laetitiae, Ch. 8, he argued that conditionings and mitigating circumstances had to be taken into account,
and that the Church would make an option for mercy.

c) When St Paul fraternally corrected St. Peter, he was not demanding that Peter return to a supposed rigorist
orthodoxy—as certain critics of Pope Francis seem to think-- but quite the contrary he was rejecting the rigorism of
the judaizers, and insisting on justification by faith, not by circumcision and the law, and insisting on the inner
morality taught by Jesus. “Man is not defiled by what enters him from outside.” Paul was reminding Peter to act in
a Petrine way and be merciful.

d) In his Apologia Pro Vita Sua, Cardinal Newman writes a wonderful footnote (G. p. 279) on Lying and
Equivocation, which explains what Catholic theologians have taught about this matter, defending the Church
against the charge of laxness with regard to the truth which is sometimes has been made by English Protestants
(whence the concept of the “Jesuitical”) . Newman outlines the complex history of the theology of “mental
reservation” in which two basic ideas remain clear: 1. That to lie is to realize an act which is intrinsically evil and 2.
That Catholic theology, with all of its diversity, does reject the rigorist interpretation of the eighth Commandment.

The Church clearly rejects rigorism; but formulating the morality that should come in its place is not an easy task.
Historically, the word pacifism came to be understood as a rigorist ideology or doctrine, and this rigorist
understanding of pacifism has been rejected by the Church.

But this has not prevented the Church from embracing with ever greater clarity what we may freely
speak of as Christian pacifism. The Popes have embraced the language of Christian pacifism, as have
many admirable Christian witnesses such as Dorothy Day, Thomas Merton and Martin Luther King.

Language, you see, is a difficult matter. And we run into trouble when we pretend naively, ingenuously
or guilefully that it is not.

3. When Pope Francis authorized a change in the language of the Catechism affirming the inadmissibility
of Capital Punishment the Church witnessed an important development of doctrine.
In his important discourse of 11 October 2017 Pope Francis recognized a development of doctrine in the Church
with respect to Capital Punishment.

He does not say “I am here developing the doctrine,” but “I am recognizing the development.”

One already finds this development not only in the 1997 emendation of the Catechism of the Catholic Church (and
in Evangelium Vitae), but also in the original 1992 text and not only in the mode of speaking of the recent Popes,
but more generally in Catholic theology and older magisterial pronouncements which defend Capital Punishment
only when it is necessary for the common good.

What Pope Francis has now done conforms thus, pace Father George Rutler, to Newman’s criterion of “belonging
to the same type”: Pope Francis does not change the Catholic doctrine but expresses it in a clearer way.

The Church has always taught that when “Capital Punishment” may only be realized out of necessity for the sake
of the common good; what Pope Francis has done is simply to recognize, according to the sound principles of
Thomistic moral theology, that when the state realizes “Capital Punishment” under these circumstances, the thing
is formally speaking no longer Capital Punishment but something else. (It is the object of a moral act that
constitutes its species.)

Paul Griffiths in his thoughtful analysis of the doctrinal development regarding Capital Punishment
speaks of “the reframing of the question as one of defense, which is what I called in my essay the
subordination of the grammar of desert to that of the common good.”8

But this reframing began neither with Francis nor with John Paul II but extends back through the most sound
theological tradition of the Church, through St. Thomas, to the very Evangelical roots of Tradition, having been only
obscured perhaps in those moments when the Church had partially succumbed to theocratic, integralist,
authoritarian and carnal conceptions of Christian politics. The Church has never rejected the principle of retributive
justice, but its way of understanding retributive justice has never been simply the same as the understanding of
retributive justice of the ambient Pagan world, and in this sense the history of Griffith’s reframing is as long as the
history of Christianity.

8
Cfr. letter of Paul Griffiths in First Things, February 2018, referencing his essay “Against Capital Punishment” in
First Things, December 2017. Griffiths fails to notice that this reframing begins long before John Paul II. It is not
that the idea of deserts (that is of retribution) ought to be suppressed. (Feser insists everywhere on retribution,
but fatally misunderstands what retribution is all about from a theological point of view, understanding it only in a
carnal and crude way. )The Gospel clearly speaks of retribution for sins, but always in an eschatological context
(which does not exclude the telescoping of eschatology when the End comes as a thief in the night.) As Christians
we do not deny retribution, the idea that every man will receive the deserts for his actions good or bad; it is just
that we heed the word of the Lord forbidding judgement before the time.
Edward Feser needs to mishandle a (very long) series of texts in order to deny that this Christian transformation of
the concept of retribution does not exist. Both David Bentley Harrt and Paul Griffiths speak of the defective
interpretation of a multitude of texts on the part of Feser and Bessette (Hart centers on Biblical and Patristic texts;
Griffiths calls attention to the faulty interpretation of the texts of John Paul II, of the Catechism of the Catholic
Church and of Pope Francis9. But it is a pity that they do not analyze the Biblical and Catholic concept of retribution
in order to distinguish it from the Pagan concept of retribution.

The misinterpretation of texts by Feser and Bessette is massive, but this does not mean that it is simply wilfull, or
that their hermeneutic is without any intelligibility whatsoever; there are historical reasons which make this
misinterpretation in some sense understandable, and there is need for a greater hermeneutical effort to make
coherent sense of the history of the Church’s teaching on “Capital Punishment” than can be accomplished in these
few pages.

Let us examine a text of Pius XII that Feser10 cites:

Even when it is a question of the execution of a man condemned to death, the State does not dispose of
the individual’s right to live. It is reserved rather to the public authority to deprive the criminal of the
benefit of life when already, by his crime, he has deprived himself of the right to live.

Pius XII, Address to the first International Congress of the Histopathology of the Nervous System, 1952

Here Pius XII shows himself in agreement with the fundamental teaching of the Catechism: that the state does not
dispose of the indiviudal’s right to live. He shows himself furthermore respectful of the language of St. Thomas in
his (unforturnately neglected) distinction between the state and public authority. And, also following St. Thomas,
speaks about the crime in actu.

But the fact that punishment is in the first place retributive doesn’t tell us everything about what the function of
civil authority (the state) in the matter of punishment.

Feser uses the fact that crimes get punished after they have been committed as supporting his way of thinking
about the retributive function of punishment, and claims that this way of thinking about this retributive function
corresponds to that of Pius XII.

9
Letter in First Things, February 2018
10
Edward Feser has become the most significant Catholic defender of Capital Punishment in the contemporary
context. He is at this moment one of the most significant and able exponents and popularizers of Thomistic
philosophy and as such he has done some valuable writing and has ably contributed to bring Thomism into the
contemporary mediatic fora.

Still I do not believe that Feser has comprehended the real thought of St. Thomas regarding “capital punishment”
but rather that his conclusions in this area violate the authentically Thomistic spirit and letter.

I am cognizant of the fact that there is substantial tradition of neo-Thomist writing which takes the Thomistic
approval of “capital punishment” for granted. (There are other Thomists who have expressed themselves with
greater care in this matter, one of them being St. John Paul II.)

I am also cognizant that many abolitionists also regard the idea that St. Thomas was in favor of “capital
punishment” as a foregone conclusion; but I believe that these abolitionists, just as the neo-Thomist defenders of
Capital Punishment have not paid to attention to the real thought of St. Thomas in this matter.
But sin does not cease to be in actu when the merely physical happening of sin ceases. Retribution is the response
of Divine Justice to sin in actu. It is the victory of Good over Evil. And in this sense retribution is primary with
regard to any merely human or horizontalist response to the evil of sin.

But let us try to understand what Pius XII really is teaching us:

Citing him once again:

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 diminution 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.. . . 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. This more profound understanding of punishment gives no
less importance to the function of protection, stressed today, but it goes more to the heart of the matter.

Pius XII cited in Edward Feser’s By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment
(p. 131). Ignatius Press. Kindle Edition.

Pius XII, following St. Thomas, wants to understand punishment properly and in a theological and spiritual way and
thus he rejects as incomplete any merely naturalistic explanation that would justify punishment in merely social
terms as defense of merely societal and horizontal values. Sin and punishment are rationally correlated and must
be commensurate. Therefore the deepest justification of punishment can only be expiation., sin being essentially
an offense against God.

For it [punishment] is concerned, not immediately with protecting the goods 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.

Pope Pius XII, Ibid.

Punishment is concerned with law, that is with the Common Good itself, and not merely with the temporal and
secondary goods with which temporal power concerns itself.

Thus what Paul Griffiths says about reframing in terms of defense rather than deserts makes sense though
superficially it might seem to be the very opposite of what Pius XII is saying.

Defense for Griffiths means the defense of the Common Good, and the dignity of the human person.

Pius XII says that the full reason for punishment is not to be found in the protective function, but in expiation; but
he does not mean by the protective function what Griffiths means by defense.

Griffiths means by defense the defense of the Common Good, the personal dignity of man.

But can expiation mean anything but the reestablishment of justice, the reestablishment of the Common Good and
the reestablishment of the Personal Dignity of Man, the vindication of the Order established by God?
Pius XII tells us that punishment, and a fortiori, Capital Punishment, has a function and meaning which transcends
the auspices and categories of the secular state. Here we see the development of doctrine on which Pope Francis
will build. We see a doctrine which shows what Newman calls an identical type.

The integralists would like to pretend that Pius XII was on evidently on their side. This should be re-examined.

This is very similar to what happened in the case of the development of doctrine constituted by the teaching of
Dignitatis Humanae. A series of nineteenth centrury popes had condemned something that they denominated
“religious liberty” but this “religious liberty” has nothing to do with the religious liberty, founded on the spiritual
dignity of the person, affirmed by the Council. Thus we should not project the ideas of today’s integralists into the
minds of Pope Gregory XVI, Pius IX or Leo XIII., just as we should not project the ideas of today’s integralists with
regard to Capital Punishment into the mind of Pius XII.

The development of doctrine corresponds to and presupposes the development of language. This is why every true
development of doctrine will have the effect of making the perennial teaching of the Church more clear.

St. Thomas himself tells us that (the expiation of) (capital) punishment is justified in reference to the Common
Good. This tells us that the Common Good is not to be understood in horizonalist terms, that the common good is
not merely the good of the state, that the Common Good is in fact essentially the Spiritual Good.

Development does not means simply that one can now reject that which was taught previously. Authentic
development excludes doctrinal Bolshevism.

One might prefer, for example, in many aspects the previous formulations of the Catechism or admire the teaching
of Pius XII in this matter and be nonetheless cognizant of the development of doctrine which has taken place, a
development which has its roots in the perennial teaching of the Church.

The Catechism of the Catholic Church has now been amended twice with respect to Capital Punishment, once
under St. John Paul II and now under Pope Francis. This fact in and of itself is significant. It indicates the Church’s
consciousness of a significant doctrinal development.

In 1997 the typical edition of the Catechism revised its paragraphs on Capital Punishment so as to reflect the
teaching of John Paul II in Evangelium Vitae. In 2018 the text was once again amended according to the express
desire of Pope Francis in order to reflect more clearly the contemporary development of doctrine (a development
already evident in times of John Paul II ).

Edward Feser and others have tried to reduce the matter to an attempt by “Rome” to introduce a (dubious)
prudential judgement about the state of contemporary penal systems which would (supposedly) make capital
punishment unnecessary and thus practically obsolete.

Indeed John Paul II and Francis both make reference to progress in these penal systems. But this is not simply a
judgement about openable contingent matters (such as “politics” or soccer) but refers to a type of progress which
the faithful really have no right to call into question: it is a progress that is to be understood in general terms, a
progress to be correlated with that growth in the consciousness of the principle of human dignity which Conciliar
documents affirm, as we have seen, and affirm in a way that transcends the category of mere personal opinion.

Doctrinal development are necessarily correlated with historical developments which make possible new insights
and new manners of expressing the truths of faith.

The Church cannot exercise her magisterial imperative without the development of doctrine, and the development
of doctrine means reading the signs of the times.
When Pope Francis speaks of humanization and of a growing consciousness of human dignity as a certain basis of
the development of doctrine he is recognizing regarding Capital Punishment, he is following the Vatican Council
which also refers to this same humanization and growing consciousness, and uses it as a certain basis for doctrinal
developments, such as that regarding religious liberty in Dignitatis Humanae, a teaching which has been confirmed
by a series of Pontiffs

Certainly the Pope does not oblige religiosum voluntatis et intellectus obsequium when he comments on
contingent matters outside of the compass of faith and morals or when he in a clearly non-magisterial way, but
the teaching of Pope Francis on Capital Punishment does concern morals; it falls not only within the area of
magisterial teaching on the Social Doctrine of the Church, but within the strictly moral sector of that doctrine. The
magisterial nature of his teaching was clear enough even before the change in the Catechism was mandated. It can
no longer be called into question.

Here the apposite text of Lumen Gentium:

This religious submission of mind and will must be shown in a special way to the authentic magisterium of
the Roman Pontiff, even when he is not speaking ex cathedra; that is, it must be shown in such a way that
his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely
adhered to, according to his manifest mind and will. His mind and will in the matter may be known either
-from the character of the documents, from his frequent repetition of the same doctrine, or from his
manner of speaking.

Lumen Gentium, n. 25

Edward Feser cites a memorandum sent by the then Prefect of the CDF Joseph Ratzinger to Cardinal McCarrick,
which insisted that abortion and euthanasia were not opinable matters (for Catholic politicians) such as Capital
Punishment. But a) This memorandum was not a document of the magisterium, and b) when the Catechism of the
Catholic Church tells us that Capital Punishment is inadmissible, admissibility can no longer be held to be an
opinable matter.

When John Paul II objected to both of the wars in the Gulf it was said that he was merely expressing his opinion,
because war is—supposedly-- an opinable matter.

But when he said, echoing St Paul VI, “mai piu la guerra!” “War never again!”, in other words when, practically
speaking, he affirmed the inadmissibility of war, was that something that we Catholics do not have to feel
ourselves obliged by?

When Pope Francis speaks of the ecological crisis one might disagree with him about some detail of his discourse,
but does that permit us disagree with the ethical theses proposed in Laudato Si?

The Catechism’s affirmation the non-admissibility of Capital Punishment is clear enough. Roma locuta, causa finita
est.

A certain kind of contemporary conservative will feel the presence of what is form him the greatest possible
ideological aberration: the conviction that progress is somehow a fact and a truth.

But the Catholic Church teaches that history is a reality, that time is a reality, and that therefore progress is a
reality. The Catholic Church teaches that Jesus is Lord of history, not only in right but in fact (without that
prejudicing what Church’s affirmation of man’s free will). The Catholic Church teaches that that the Word really did
enter into history in a decisive and definitive way.) –
It is a pity that the integralist Catholic who entertains this ideological rejection of progress at the same time
pretends to be the lone champion of the Social Kingship of Christ while denying that Jesus is Lord of history not
only in right but also in fact.

Realism (and with it Our Christian faith) admits progress as reality, but the same realism (and the same Christian
faith) also admits that progress is a fragile reality on account of human fragility, on account of Original Sin. 11

The Ur-Commandment of God to man, the commandment of humanizing and subduing the world, is recorded in
Genesis:

God created man in the image of himself, in the image of God he created him, male and female he
created them. God blessed them, saying to them, "Be fruitful, multiply, fill the earth and conquer it. Be
masters of the fish of the sea, the birds of heaven and all living animals on the earth." God said, "See, I
give you all the seed-bearing plants that are upon the whole earth, and all the trees with seed-bearing
fruit; this shall be your food. To all wild beasts, all birds of heaven and all living reptiles on the earth I give
all the foliage of plants for food." And so it was.

Genesis 27-30

But God’s commandment is his Holy Word, and God’s Holy Word is efficacious and this efficaciousness of God’s
Word is what the integralist seems to forget in his denial of progress.

It is God’s Holy Word that gives life to the world; and the Holy Spirt is not only Dominus but also Vivificans. Indeed
the Holy Spirit could not be Lord without being Life-Giver.

The Church professes her faith in the Holy Spirit as "the Lord, the giver of life." She professes this in the
Creed which is called Nicene-Constantinopolitan from the name of the two Councils-of Nicaea (A.D. 325)
and Constantinople (A.D. 381)-at which it was formulated or promulgated. It also contains the statement
that the Holy Spirit "has spoken through the Prophets."
…
The Church, therefore, instructed by the words of Christ, and drawing on the experience of Pentecost and
her own apostolic history, has proclaimed since the earliest centuries her faith in the Holy Spirit, as the
giver of life, the one in whom the inscrutable Triune God communicates himself to human beings,
constituting in them the source of eternal life.

This faith, uninterruptedly professed by the Church, needs to be constantly reawakened and deepened in
the consciousness of the People of God. In the course of the last hundred years this has been done several
times: by Leo XIII, who published the Encyclical Epistle Divinum Illud Munus (1897) entirely devoted to the
Holy Spirit; by Pius XII, who in the Encyclical Letter Mystici Corporis (1943) spoke of the Holy Spirit as the
vital principle of the Church, in which he works in union with the Head of the Mystical Body, Christ; at the
Second Vatican Ecumenical Council which brought out the need for a new study of the doctrine on the
Holy Spirit, as Paul VI emphasized: "The Christology and particularly the ecclesiology of the Council must
be succeeded by a new study of and devotion to the Holy Spirit, precisely as the indispensable
complement to the teaching of the Council."

11
If such a belief disqualifies me from being a conservative as that term is currently misused, then I must dissociate
myself from what these people denote with conservatism, a term which I think is being violently maltreated by
that certain class of commentators who also seem in to have a penchant in the present day for a cavalier and gross
disrespect for the teachings and person of Pope Francis.
 John Paul II, Dominum et Vivificantem, 1 and 2, citing Paul VI: General Audience of June 6, 1973:
Insegnamenti di Paolo VI, XI (1973), 477

That it is possible to read such texts and not get it seems to be verified by the facts: soteriology gets swallowed up
by a Pelagian moralism. One forgets that the Ur-commandment is at once a blessing. The dogma of a God of love
gets sullied, gets threatened.

Is the maturation/genesis of the State not an effect of the humanization of the world, ordained by God, something
good which is, as all good things are, a fruit of the Holy Spirit?

The Church has affirmed the sacredness of life at a historical juncture when such an affirmation was
right and necessary:

God and not the state is lord over life and death. God and not the state.

Life is not a purely biological category, but when we talk about life we are talking about Spirit and about
Man and we are talking about the final meaning of existence.

In demanding that the state recognize the sacredness of life the Pope has aligned himself with what
Cardinal Bernardin called the doctrine of the Seamless Garment. To oppose any offense against life the
Church must oppose all offense against life. This idea was most recently beautifully expressed by Pope
Francis in Gaudete et Exsultate, 101-103

The Church can no longer remain silent before the corruptive working of the Culture of Death.12

12
I lived as a religious seminarian and priest in Holland between 1989 and 2013, precisely in those years in which
Holland the practice of euthanasia was institutionalized in that country and in this process one witnessed the
corruptive working of the Culture of Death. Fascist (I use that term in its technical sense) structures were
established by which homicidal practice binds itself to, becomes consubstantial with, and is shored up by the
structures of bureaucracy (especially through the establishment of review boards consisting of physicians, ethicists
and representatives of the state in order to confirm the not duly defined zorgvuldigheid (carefulness) and
purported rationality of what has been realized (i.e. homicide).

Many good people have tragically been led to believe that this system should serve as a model of how to confront
the mystery of hopeless suffering (uitzichtloos lijden).

If we see in the case of Euthanasia the working of the Slippery Slope the Culture of Death we should also ask
ourselves about the matter of abortion.

Where and how did institutionalized abortion begin? It is not difficult to trace the history of institutionalized
abortion back to the Eugenics Movement (with all of its racist and ethnocentrist connotations), backed by
plutocrats confusing their own perverse dreams with the greater good of mankind. Institutionalized Abortion
became the Sacred Cow of the Left, but before the present state of things came about there is a long and richly
significant history in which Eugenics is tied to racism, nationalism and systems of economic interest. Hitler was
against abortion—for Aryans that is. He was an admirer of the world view and pseudo-science of American and
British eugenicists and implemented their ideology. The World War signaled a key moment for the Culture of
Death not only in the Holocaust, but with the allied area-bombings, fire bombings and, ultimately the development
and use of nuclear weapons, intimately related to the coming into being of the Cold War with all of its atrocities
and offenses against human dignity. After Hiroshima and Nagasaki, Japan under the watch of the American
military, introduced the first “modern” abortion laws under the influence of Eugenicist thinking and machinations.
The influence of American militarism on the culture of death should be studies more closely. Henry Kissinger, one
of the leading post-war military-poltical strategists produced a National Security Memo urging the United States to
implement population control (largely through contraception but also through abortion) in third world countries
in which he saw a robust young population as posing a threat to American economic and security interests; these
measures would have to be sold to the world as altruistic while being in fact quite the opposite. The left would rail
at Kissinger for his role in orchestrating genocidal military operations in Vietnam, Laos and Cambodia, for his
support of genocidal campaigns such as that of Soeharto’s Indonesia in East Timor, and for his support of political
killings in Latin America (Operation Condor); but they would be largely be oblivious his role in implementing the
politics of Eugenics disguised as population control, though it be expression of the selfsame ideology. Nixon’s men
told us in 1972 that a vote for McGovern is a vote for “amnesty, acid and abortion,” but within a year a Supreme
Court with four Nixon-appointed justices would give us Roe versus Wade, not as a fruit of democratic inspiration,
but as the result of plutocratic, eugenicist and racist machinations.

When the Seamless Garment is violated the corrupting influence can’t help but spread through the body.

What about Capital Punishment then?

The anodyne observation that capital punishment has always existed does not suffice. Abortion has always existed,
and so has slavery. One must go and meet the condemned of the ages. One must collect the dead bodies. One
must get to know the children, the wives, the siblings, the mothers and fathers of the executed. One must get to
know the infinite masses of those who have suffered at the hands of the mighty and the wicked.

One must also speak with the victims of crimes and hear what they have to say about vengeance, about
forgiveness and about peace and reconciliation.

Edward Feser and Joseph M. Bessette tells us with great enthusiasm that capital punishment in the United States
has been the fate of men who really deserved it.

I suggest that he meditate the account that Christopher Hitchens gives us of the execution of mentally disabled
Ricky Ray Rector expedited for purely demagogical reasons by the Governor of Arkansas then candidate for the
Presidency of the United States, Bill Clinton.

Our sad history teaches us that the practice of Capital Punishment in the United States is tied to its traditions of
racially charged frontier/colonialist/white supremacist justice expressed not only in its overt lynchings but also in
its subtle and calculated politics of race and is rooted in the widespread presence of the Manichean taint present
in the political and military strategies of our oligarchs and plutocrats and whose presence in the political base of
the general population is largely the fruit of demagogic manipulation.

I would not be hasty to affirm (or to deny) that we stand out among the nations of the world for our love of justice,
or our moral values, or our righteous sense of sin and injustice, but I believe that we must ask ourselves if we do
not stand out for our Manichean vision of a class of wrongdoers, for our willingness to demonize, and we must ask
ourselves to what extent this Manichean vision ins consubstantial with our ethnocentrism, our nationalist
extremism, our racism, and to what extent this vision has dominated our political and military exploits, and to
what extent our political and military praxis has been motivated by in turn by the Cult of Money and its priestly
caste.

If we want to understand what is truly good and great in America we must have the valor to ask ourselves these
critical questions.

Today our country is asking itself about its relation to its southern neighbors, to the devastation wrought by drug-
related criminality in reaction to which our political system has crated the vast penal system which has been our
The individual person who kills in self-defense is in fact defending in his own person the common good.
Though he has not been in a formal-juridical way been given charge of the common good, he as acted in
fact ad hoc in defense of the common good.

We can no longer stand in denial before what the Church is clearly teaching—while keeping in mind the
necessity of the discernment of cases so that this actual teaching of the Church is not allowed to
degenerate into a rigorist parody of itself, a parody which indeed contradicts that rejection of rigorism
which the Church indeed has always taught-- namely that the state’s claim to a right to practice capital
punishment is an arrogance in violation of the dignity of the person and the fundamental and universal
right to life, that it is a clear manifestation of the Culture of Death and is corruptive of the just ordering
of society.

The Church teaches, and not without historical justification, that the event of Christ has transformed the
world profoundly, that it has brought with it the most profound historical and cultural transformation,
in such a way that many elements of what contemporary man considers to belong to the sure and
evident patrimony of universal moral and civilizational progress have a Christian root.

At the center of this patrimony lies the conception of an inalienable and universal dignity of the person
from which carries with it the affirmation of certain rights which are inalienable and from God.

The Church has had no small part in the development of the consciousness of the dignity of the human
person and of its fundamental and inalienable (i.e. God-given) rights. One thinks immediately on the
Christian anthropology of St. John Paul II (rooted in the teaching of the Second Vatican Council) and the
noble Christian humanism expressed by St. John XXIII in Mater et Magister and Pacem in Terris.

The modern conception of the state corresponds to and stands in an essential way to the affirmation
and recognition of universal human rights, founded on the dignity of the person, such as is articulated,
for instance, in the Universal Declaration of Human Rights (1948).

The form of the state is thus not something static since the state has a history13: the modern state is
something that came into being at a certain point in history for definite reasons and a unique and

reaction to a criminality which we perhaps all too stubbornly wish to blame on “others” according to the
scapegoating logic of our Manicheanism?

We must, rather, search more deeply into our own soul.

Catholic Americans may wish to see the roots of our practice of Capital Punishment in Western (that is Catholic)
tradition. But in such analyses is there not a negligence of the very Gospel of Jesus Christ which cannot be divorced
from one’s conception of Christendom or of Catholic Tradition? Have we not surreptitiously imported a pagan
conception of justice which is deforming our very understanding of Divine Justice?

The fact (alluded to by Feser and Bessette) that capital punishment was robustly practiced in the Papal
States under Pope Pius IX does not settle the question about the Church’s authentic teaching about
Capital Punishment.

13
Here I would like to recall two important texts of Pope Benedict XVI. In the first he speaks of the need which the
Fathers of Vatican II experienced of a certain “redefinition” of the relation between faith/the Church and a)
modern science b) the modern state and c) the world religions: a need which presupposes that these institutions
of reason are not merely static realities, and that there is a correlation between their history and the history of the
People of God:

It might be said that three circles of questions had formed which then, at the time of the Second
Vatican Council, were expecting an answer. First of all, the relationship between faith and
modern science had to be redefined. Furthermore, this did not only concern the natural sciences
but also historical science for, in a certain school, the historical-critical method claimed to have
the last word on the interpretation of the Bible and, demanding total exclusivity for its
interpretation of Sacred Scripture, was opposed to important points in the interpretation
elaborated by the faith of the Church.

Secondly, it was necessary to give a new definition to the relationship between the Church and
the modern State that would make room impartially for citizens of various religions and
ideologies, merely assuming responsibility for an orderly and tolerant coexistence among them
and for the freedom to practise their own religion.

Thirdly, linked more generally to this was the problem of religious tolerance - a question that
required a new definition of the relationship between the Christian faith and the world religions.
In particular, before the recent crimes of the Nazi regime and, in general, with a retrospective
look at a long and difficult history, it was necessary to evaluate and define in a new way the
relationship between the Church and the faith of Israel.

Pope Benedict XVI, from his discourse to the Roman Curia, 22 december 2005

In the second text Pope Benedict speaks (in 2014, after his pontificate) of the perennial distinction of temporal and
spiritual authority, and how it is grounded in Revelation, and how the secularity of the state, understood correctly,
guarentees respect for this distinction:

The fusion of politics and religion in Islam, which necessarily limits the freedom of other religions, and
therefore also that of Christians, is opposed to the freedom of faith, which to a certain extent also
considers the secular state as the right form of state, in which that freedom of faith which Christians
demanded from the beginning finds room. In this, John Paul II knew that he was in profound continuity
with the nascent Church. This was facing a state that knew religious tolerance, of course, but that
affirmed an ultimate identification between state and divine authority to which Christians could not
consent. The Christian faith, which proclaimed a universal religion for all men, necessarily included a
fundamental limitation of the authority of the state because of the rights and duties of the individual
conscience.

The idea of human rights was not formulated in this way. It was rather a question of setting man's
obedience to God as a limit on obedience to the state. However, it does not seem unjustified to me to
define the duty of man's obedience to God as a right with respect to the state. And in this regard it was
entirely logical that John Paul II, in the Christian relativization of the state in favor of the freedom of
obedience to God, should see human rights as coming before any state authority. I believe that in this
sense the pope could certainly have affirmed a profound continuity between the basic idea of human
rights and the Christian tradition, even if of course the respective instruments, linguistic and conceptual,
turn out to be very distant from each other.
definite causality, and when we speak of the state we mean the modern state, although we remain free
to extend our usage of the term to refer to institutions belonging to ancient and classical history, but
this must be done in a historically conscious way.

The affirmation that when we speak of the state we mean the modern state is not trivial, and does not
betray historicist-subjectivist ideological presuppositions which ought to be be discarded.

The state simpliciter is the modern state, the secular state.

The modern state is rather a stable guarantor of rights than a more or less ad hoc defense against
perceived dangers.

(One can argue that the Roman Empire was undoubtedly a stable guarantor of law and rights, and much
more so perhaps than many entities that call themselves states today; but when one makes such an
affirmation one is using the modern yardstick to measure and make sense of historical reality, one is
saying in some paradoxical way that Rome had something modern about it. )

The affirmation that the modern state IS the secular state constitutes NO concession to secularist
ideologies.

Pope Francis: “Secularity is the Secular State. This means that the state is open to all values. One of
these values is transcendence.”14

Secularist ideology has indeed served as the foundation of the totalitarian state, a state which
undermines religion, that is to say the true religion. Before the rise of such ideologies, the Church in the
Nineteenth Century affirmed that the state was bound to foster religion and thus the True Religion.

Pope Francis is saying, however, is this: that the state must be secular in order to foster true religion and
therefore the True Religion.

What Pope Francis is saying is that the state must be secular to be itself. When the state is faithful to
itself, it will be faithful to the world; and when it is faithful to the world it will be faithful to
transcendence and true religion, because transcendence and true religion belong, paradoxically, to the
world.

If the state is secular the state will not trample on man, on the inalienably human; the state will not
poison the fount from which it owes its origin, its teleology, fundamental identity and orientation.

“A Never-Before-Published Text From Pope Benedict” in Sandro Magister, Settimo Cielo, commenting on
"Diritti umani e cristianesimo. La Chiesa alla prova delle modernità” of Marcel Pera

1414
Política y Sociedad: Conversaciones con Dominique Wolton, Ediciones Encuentro, 2017, p. 216
The history of the modern, secular state is complex rather than univocal and simple. The state on one
hand has assumed a broader function as guarantor of a spectrum of human rights and as agent of a
more clearly delineated and ample social function, according to the principle of subsidiarity.

Yet on the other hand the state has been pruned and freed, by the same principle of subsidiarity and
respecting the same inalienable human dignity and God given rights, the consciousness of which has
grown in the world, of certain pretensions.

If the state has come into its own during the modern period, this has occurred not as isolated
phenomenon but in relation to a broader story of human and social development.

If Aristotle was correcting in calling man a political animal, we must understand this term “political” in a
deep way which is affected and determined by the event of Christ whose Kingdom is not of this world.

Pope Francis enriches the Church with his teologia del pueblo rooted in the Latin American experience of
Evangelization and inculturization but also rooted in the universal theology of the Second Vatican
Council in which the Church makes a prise de conscience with respect to her own Catholicity.

Our polis is not simply the state.

Leo XIII, following St. Thomas Aquinas, delineates the Catholic theology of the distinction of Church and
State (Immortale Dei).

And we cannot do justice to the data of Revelation or of our own historical experience without taking
into account the perpetual battle described by Scripture between the Heavenly Jerusalem and Babylon,
between the City of God and the City of Man (Augustine), between the Civilization of Love and the
Culture of Life against the Culture of Death.

But this does not make us the enemies of secularization. Secularization is Biblical. God is the Creator of
the world and therefore secularization, being man’s participation in God’s creative project, is the project
of God of God himself, man being God’s creature.

“God blessed them, saying to them, "Be fruitful, multiply, fill the earth and conquer it. Be masters of the
fish of the sea, the birds of heaven and all living animals on the earth." (Gen 2:28)

Secularization is what man realizes in fulfilling this ur-commandment of God.

Pope Paul VI tells us in Populorum Progressio that Development will be the new name of Peace. The
Pilgrim People of God (an army!) follows the Prince of Peace in the way of peace. By following the
teaching of Pope Francis regarding CP and more generally regarding the Seamless Garment the Church
will militate for peace!

The anthropology attendant on this more universal conception of law, rights and inalienable human
dignity, has at length become part of a universal patrimony. Secularization (not secularist ideology!)
means the maturation of this patrimony. The consciousness of the world which is consubstantial with
secularization carries with it and has as its center this anthropology.

The Second Vatican Council speaks of a multiform cultural development which makes her evangelizing
task more urgent:
 Since the Church is in Christ like a sacrament or as a sign and instrument both of a very closely
knit union with God and of the unity of the whole human race, it desires now to unfold more fully
to the faithful of the Church and to the whole world its own inner nature and universal mission.
This it intends to do following faithfully the teaching of previous councils. The present day
conditions of the world add greater urgency to this work of the Church so that all men, joined
more closely today by various social, technical and cultural ties, might also attain fuller unity in
Christ.

Lumen Gentium, 1

A sense of the dignity of the human person has been impressing itself more and more deeply on
the consciousness of contemporary man,(1) and the demand is increasingly made that men should
act on their own judgment, enjoying and making use of a responsible freedom, not driven by
coercion but motivated by a sense of duty. The demand is likewise made that constitutional limits
should be set to the powers of government, in order that there may be no encroachment on the
rightful freedom of the person and of associations. This demand for freedom in human society
chiefly regards the quest for the values proper to the human spirit.

Dignitatis Humanae, 1

No one would deny the phenomena of economic, technological and political development in the world.
But no one would deny the injustices of the frequently unequal and unjust distribution of the fruits of
this development, something that frequently threatens to undermine the very pretense of progress.

The pheneomena of progress and development are precarious. 15 But this does not mean that progress
is not a real thing, and it does not mean that material progress is all we have to hope for or expect.
Material progress may become the sign and instrument of man’s integral development.

Our modern consciousness of the dynamic growth of Natural Law will not make us insensitive to the
offenses and crimes realized in the name of the state, but on the contrary will make us aware of and
not indifferent to the workings of that Beast of the Apocalypse even when it gives itself the name of
Defender of Secularism.

We must distinguish between words and things, between ideology and truth.

Social and cultural development necessarily accompanies and realizes humanization, and the
establishment of society as an authentic society of persons.

One is person in relation to others.16 And from this essential relationality of the person springs the
correlation between the fate of peoples and the fate of persons, a principle which is deeply Biblical. The

15
Socialists will point to the real fruits of the social-democratic structures present in Europe and North America
and wherever they have been conscientiously implemented, and they have a point; liberals will point to the real
fruits of free enterprise and free markets in many cultures and situations where political structures have
consciously been employed to guarantee economic freedom, and they have a point.
16
There was a noteworthy discussion between Michael Waldstein and David L. Schindler, two leading scholarly
interpreters of the Theology of the Body of John Paul II, regarding the weight of the category of relationality in the
personalism of John Paul II, with Waldstein defending a sort of hermeneutics of continuity that, above all, places
John Paul II in the Aristotelian-Boethian-Thomistic tradition and Schindler recognizing the force and emphasis that
John Paul II gives to the category of relation gives to the personalism of John Paul II its special character and value.
Lord will judge the nations (Mt 25) and there will be no salvation outside the Church, the People of God.
(Cyprian, Boniface VIII, etc.).

This correlation prevents us from embracing either of the two extremisms:

a) The extremism which misunderstands the principle of the primacy of the common good in such
a way that as soon as the state (or a people) is involved in a question it is to be assumed that the
state’s rights will trump those of individual persons, with the latter having become no longer
relevant.
b) The extremism of reversed sign affirming that as soon as individual rights enter into a question,
one can assume that the principle of the common good is no longer relevant.

The principle of the primacy of the common good and the principle of the dignity of the human person
are not in conflict with one another, but are harmonically related, which means that the two things,
which initially appear as opposed and in conflict, will turn out to be one thing.

This brings us to St. Thomas. It is a fact that some of the most dogged theological defenders of Capital
Punishment (Edward Feser, Ralph McInerney) unabashedly call themselves Thomists and are dead
certain that St. Thomas defended capital punishment. But is this so?

St. Thomas is above all a theologian, theologian par excellence; and this means that we would read him
abusively if we reduce his thought to being a mere expression of the politics of his time, or if we turn his
thought into an instrument of the politics of our time.

We ought to ask ourselves therefore if the defenders of capital punishment, even as they mimic the
classical language of perennial philosophy: natural law, the common good, retributive justice, could not
in fact be under the influence and motivation, consciously or unsconsciously, of a type of power politics.

In a world in which one lives with resentment, could capital punishment not appear as an apt
instrument of what which is really nothing more than an all too human vengeance against what vexes
one (and not something supported by Perennial Philosophy and Catholic moral teaching)?

Could punishment have become in our thinking something very different from the punishment that
discussed theologically by St. Thomas in the Summa Theologica; could it have become a mere human
vengeance, motivated politically, and could theology have become a means to justify the politics of
mere human vengeance, and could talk of Divine Justice have become a cover for human meanness?17

17
Here if one is an American, one must face up to the racial tint that our system of justice, our penal system, and
with it the apparatus of Capital Punishment has acquired. We have known a long history of undervaluing and
scapegoating persons of other races, from other countries dissimilar to ours and of supposedly lower social,
cultural, developmental and economic conditions (in spite of the fact that we have also sometimes, consciously
and notably done the opposite and acted with altruism and heroic solidarity with the oppressed).

Consciousness of such a history does not, in my opinion, rhyme with acquiescence to the institutionalized evil of
Capital Punishment. We are called to reflection, to restraint, to a moratorium, to metanoia. In this respect I
recommend an essay of Alexander Solzhenitsyn wrote with reference to his Russian Fatherland, but also with
respect to other nations in the collection From Under the Rubble, containing the essay “Repentance and self-
Limitation in the Life of Nations” as being paradigmatic and useful also for us.
Will we and can we assimilate the thought of St. Thomas Aquinas to the mean-spiritedness of our own
thought? What did St. Thomas actually say about “capital punishment”?

In his discussion of murder S.T. II-II q.64 (under Prudence and Justice, under the Virtues, under the moral
life, within the exitus-reditus structure of the Summa) Aquinas asks if it is permissible to take the life of
the sinner: Videtur quod non sit licitum occidere homines peccatores.

a) He does not ask if taking the life of sinners is intrinsically evil, he asks if it is licit, i.e. lawful, i.e.
according to natural law.
The catechism now tells us that this is not licit (permissible) for the state. St. Thomas is,
however, not talking about the state. He is speaking absolutely: Is it licit? His answer is yes it is.

b) He speaks of sinners, not criminals. A criminal is a lawbreaker. A sinner is someone who offends
against God, who breaks the law of God. The fact that it is licit to take the life of the sinner, does
not mean that it is the task of the state. This in spite of the fact, that he will explicitate that
taking the life of sinners is the task of those exercising public authority and not the task of
private persons.

In St. Thomas it is habitual to speak formally and by speaking formally one speaks clearly.

In assessing the doctrine of St. Thomas we must in the first place observe the theological context: St,
Thomas discusses murder under the heading of justice. God forbids the injustice of killing/murder (that
is of the innocent) in the Fifth Commandment.

But does that mean that God forbids the taking of the life of the sinner? In other words: is the taking of
the life of the sinner injust? St. Thomas responds: No it is not. It is JUST.

There is thus an “exception” to the Fifth Commandment!

Sed contra est quod dicitur Exod. XXII, maleficos non patieris vivere; et in psalm., in matutino interficiebam
omnes peccatores terrae.

You must not allow a sorceress to live

Exodus 22:8

Morning after morning

I reduce to silence
all who are wicked in this country,
banishing from the city of Yahweh all evil men.

Psalm 101:8

But the discussion of “exceptions” to the commandments is always a difficult matter. (See once again
the footnote above referencing Cardinal Newman’s remarks on equivocation and lying.)

Some moralists seem to pretend that this difficulty does not exist and they tell us ingenuously that “The
Fifth Commandment is different!” and “The Chruch has always admitted Capital Punishment and Just
War!” (as if there were never any difficulty in the discussion of these matters); and—when being
scandalized by the teaching of Amoris Laetitia “The Sixth Commandment cannot have difficult cases
because the Church has always taught that there is never paucity of matter with regard to her!” And
“Veritatis Splendor teaches us that some acts are intrinsically and always wrong!” (using this to impugn
the teaching of AL about the necessity of discernment with regard to difficult cases). And “If you start
allowing for difficult cases that need discernment you are opening the floodgates to situation ethics,
relativism, proportionalism, and consequentialism.” And “if you allow for difficult cases you are
attacking the very foundations of morality.” And “if you allow difficult cases you are denying the
existence of easily determined cases.”18

The words of St. Thomas are shocking to us, to the modern mentality, but that does not mean that the
shocking thing he says—supported biblically—is not the truth. But if it is the truth we should allow that
he is speaking about difficult cases, and not about something that is just obvious.

When St. Thomas here speaks of sinners he is speaking of sinners in actu. The sinner offends against
God, and commits what is in absolute terms an offense, and how shall this offense be avenged?

It is clear that public authority and public authority alone will be charged with killing the sinner,
because sin being against God, is objective, and being objective is public:

“Then his son said, 'Father, I have sinned against heaven and against you. I no longer deserve to
be called your son.”
Luke 15:21

He who sins kills, and who shall avenge this killing and kill the sinner?

It is JUST to kill the sinner.

(But does the Gospel not tell us that the best way to kill the sinner is to be merciful towards him?19)

But--wait a second!-- what was I saying about difficult cases? It now seems like it is just to kill the sinner
as a matter of principle, whereas it had first appeared as an exception to a principle. It seems like a mere
matter of optics.

But here is crux of the matter: that the difficult case is where the deeper principle reveals itself. And as it
turns out this deeper principle is the one unique principle of both “rule” and “exception.”

18
Elizabeth Anscombe in her essay “Mr. Truman’s Degree” in reference to the dropping of the atomic bomb on
Hiroshima and Nagasaki tells us that that there are indeed difficult questions in the morality of war, but this was
not one of them.
19
Supporters of capital punishment have been known to argue that capital punishment is actually a spiritual good
for those who receive it, since the prospect of execution has been known to focus the mind on eternal things (as
Samuel Johnson once observed in the well-known witticism); but this seems to me to be a spiritually perverse
argument: if Our Lord sometimes has taken advantage of the dire circumstances in which a person has had the
misfortune to enter into for his own holy reasons, this does not justify our bringing a person into dire
circumstances which are in themselves an offense against human dignity.
No other instance could possibly be charged with killing the sinner. Public authority represents God, and
in representing God it addresses the objective order, and in representing the objective order it is
charged with its own proper (public!) authority. 20

If the state can be considered as the Secular Arm of the Church—and let us not forget that this
terminology was present even in the 1917 Code of Canon Law—then this metaphor and mode of
thinking illumines and corresponds to the Thomistic doctrine about regarding avenging sin and his
affirmation that it is licit to kill the sinner, and that this lethal vengeance corresponds to public
authority.

Public authority in killing the sinner acts apocalyptically, introducing apocalyptic justice into the world.

When, in exceptional situations, public authority, acting apocalyptically, kills the sinner it acts rightfully.
But this does not mean that public authority (i.e. the state) has in general a right to kill the sinner, which
is what we would be affirming if we were to affirm—against the Magisterium of the Church—the
admissibility of Capital Punishment.

In the language of the Bible sin and death always go together, are two faces of one thing. The Bible tells
us that sin is deadly, that it is deadly injustice, and if we believe in a good and all-powerful God we must
believe that God avenges the deadly injustice of sin, and that this occurs in this world on the public stage
and through the punishments realized by public authority, acting on God’s authority (as well as through
public means such as the scourge of war, through which God also punishes sin in the Biblical narrative.)

But the Bible must be read with intelligence in the light of the Holy Spirit. If the Bible shows us that God
uses the nations and their kings in order to chastise Israel for her infidelities this does not render us a
Biblical affirmation of the admissibility of war; likewise the Biblical narratives of capital punishment
(centered of course in the case of the condemnation and crucifixion of Our Lord) do not represent an
argument for the admissibility of Capital Punishment.

Considered deeply, in fact the Bible gives us the basis for the Church’s affirmation of the inadmissibility
of both war and Capital Punishment. In our times through a remarkable development of doctrine the
Holy Magisterium of the Church is teaching both the inadmissibility of war and the inadmissibility of
Capital Punishment.

Pope Francis in a major discourse on October 11 2017, celebrating the 25th anniversary of the
promulgation of the Catechism of the Catholic Church declared that the Death Penalty to be contrary to

20
St. Thomas argues, coherently, that since heresy is the worst of sins, being the worst of offenses against the
Body of Christ, more grave than murder, the killing of the heretic-sinner by this same public authority is legitimate.
But this does not mean that the state has a right to kill heretics, that capital punishment is legitimate in the case of
heretics. In general one cannot argue from the existence of “capital offenses” to the legitimacy of Capital
Punishment. In the interchange between Edward Feser and David Bentley Hart this distinction is ignored. Hart, an
Orthodox theologian, is scandalized by the Medieval Church’s affirmation of heresy as a capital offense (He seems
scandalized, in general, and as many of the Orthodox are, by the actions of the Papacy in the medieval and pre-
modern period, he refers to the papacy “the poison tree” whose fruit is to be shunned; Edward Feser, on the
other hand, is oblivious to the distinction between capital offenses and a Capital Punishment claimed as a general
and pre-existing prerogative of the state. And thus Feser feels himself free to disattend to the Magisterium which
affirms the inadmissibility of Capital Punishment.
the Gospel “affirming that there has been a development of doctrine in the Church and a change in the
consciousness of the Christian people.”21

Pope Francis:

One has to strongly affirm that condemnation to the death penalty is an anti-human measure
that humiliates personal dignity, in whatever form it is carried out, and is of itself contrary to the
Gospel, because it is freely decided to suppress a human life that is always sacred in the eyes of
the Creator, and of which, in the final analysis God alone is the true judge and guarantor.22

Jesus tells us that Pilate has power over him, power given from above, power namely to put him to
death. And Pilate does put him to death, but unjustly. God makes use of Pilate for his purposes, just as
he has made use of the Pagan Kings to chastise His People; or rather we should see Pilate as the Pagan
par excellence who God uses to work justice par excellence, a mysterious justice, God’s justice.

In the Church the Sacrament of Penance always has a public dimension. Penance is public for the same
reason that punishment is realized public. Justice demands that that punishment because sin is public.
When Jesus receives the punishment for our sins in our place he receives a public punishment

And when I am lifted up from the earth, I shall draw all men to myself." By these words he
indicated the kind of death he would die. The crowd answered, "The Law has taught us that the
Christ will remain forever. How can you say, 'The Son of Man must be lifted up?' Who is this Son
of Man?"

John 12: 32-34

St. Thomas understands this exigency of justice. But this does not mean that St. Thomas endorses capital
punishment.

St. Thomas sees things from what is both a higher perspective and a non-modern perspective.

It is a higher perspective in the sense that it is a theological perspective in the sense of being a God’s-
eye perspective

21
“Pope Francis: the Death Penalty is Contrary to the Gospel,” Gerald O’Connell, in America, October 11, 2017
22
Pope Francis, Discourse on the Occasion of the 25th Anniversary of the Promulgation of the Catechism of the
Catholic Church October 11, 2017. John Finnis reacting to the subsequent change in the text of the Catechism is
nonplussed by the fact that this new text is based on an argument from human dignity, which language he sees as
all too similar to the sort of language that the United Nations uses in defending such things as euthanasia and the
new politics of gender; but for Pope Francis (whose theological and philosophical formation and weight have been
systematically underestimated by a certain tribe of Catholic moralists) an offense to human dignity will always be
contrary to the Gospel, man being made in God’s image, and every human life sacred in the eyes of the Creator.
(Cfr. John Finnis, “The Church Could Teach that Capital Punishment is Wrong” in The Public Discourse, August 23,
2018 in which the author maintains the strange thesis that the Catechism does not—yet—teach that Capital
Punishment is wrong, that inadmissible does not mean wrong, whereas if one reads the Catechism in the light of
the teaching of Pope Francis—something natural and necessary—it is perfectly clear that if Capital Punishment is
against human dignity and against the Gospel and offends against God’s sovereignty as the Lord of Life , then one
is teaching that it is wrong.)
This does not mean that his perspective is superior to that of the Catechism of the Catholic Church and
is thus to be preferred.

His perspective is a higher in that it is a God’s-eye (theological perspective) which has to do with sins
rather than with crimes, offenses against God and God’s law rather than infringements of human law
and has to do with divine justice rather than human politics.

The fact that Thomistic theology and philosophy underlies what we know today as the Social Doctrine of
the Church does not mean that what we know today as the Social Doctrine of the Church can simply be
extracted from St. Thomas.

St. Thomas does not endorse capital punishment, which as institution is by definition an action of the
state, i.e. the secular state, something that St. Thomas does not know. What St. Thomas means by
public authority is not what we mean by the state.

The Church in the Modern World reminds the secular state of its essential task in defending the dignity
of the person in the essential rights of the persons, especially the right to life and the right to religious
liberty. It is clear in the perspective of the Holy Magisterium that that the State is not Lord over Life and
Death and not Lord over the religious and spiritual core of the human person.

The state is thus limited, but in this limitation lies its own highest dignity in the service of the human
person. The Church has not abandoned the idea of a God who punishes sins in this world or in the next.
But this doctrine is being purified of a counterfeit idea of God who righteous vengeance is confused with
mere human vengeance.

The formal language maintained by St. Thomas is sustained by habitually considering acts as acts, by
considering them in actu. When Thomas speaks of sinners, he is talking about the sinner in actu and
when he speaks about punishment he is talking about punishment in actu.

When he talks about the legitimacy of Capital Punishment (permitting ourselves the use of this
anachronism) he is talking about effective punishment. And the fact that he is talking about effective
punishment shows that the anachronism is indeed an anachronism.

This is so because when we moderns talk about Capital Punishment or about punishment in general we
are not talking about effective punishment but about a pretended general prerogative or right of the
state to inflict Capital Punishment or punishment in general.

St. Thomas argues that “capital punishment” (or whatever you want to call it) is just because
punishment by its very nature is just, because punishment by its very nature realizes justice in the
world, and what by its very nature realizes justice must be just.

The point of view of St. Thomas is theological, but at the same time it is metaphysical.

The argument of St. Thomas for the justice of punishment (and thus “capital punishment”) is a valid
argument following from a core principle of Thomistic thinking (taken from Aristotle): A thing is
intelligible inasmuch as it is in act.
But it does not settle the question of the admissibility of Capital Punishment in the Modern sense of the
word. St. Thomas was not commenting on Capital Punishment from the point of view of the Social
Doctrine of the Church, because when he wrote there was as yet no Social Doctrine of the Church.

The Thomisitic theology of punishment combined with today’s social doctrine of the Church has
repercussions which go beyond the rejection of CP. Thus Pope Francis not only rejects capital
punishment but rejects a life sentence that supposing that there is no possible redemption for the one
receiving such a sentence.

De internis neque ecclesia. Even the Church does not pretend to judge the soul, much less the state:
judging the soul belongs to God alone.23

But if punishment is essentially an interior thing (something which does not prevent sin from having a
public dimension, as we have seen) and if punishment is defined as the just desert of sin, then
punishment (of sins) cannot be the task of the state.

Punishment (of sins) is not the competence of civil authority; nevertheless we are accustomed to the
idea of a civil authority or state that does punish.

Why is it that we are so accustomed?

23
This is not just a question of a skepticism regarding our capacity of knowing the state of soul of the offender.
Edward Feser tries to frame the question in this way in his response to the criticisms of Paul Griffiths and David
Bentley Hart to what Feser and Bessette pretend in their book By Man Shall his Blood be Shed:

Griffiths and Hart also feign doubt about whether anyone can know what just deserts
are. But we needn’t achieve mathematical exactitude, nor be able to settle every
case, to know (for example) that a fine can be a fitting punishment for vandalism, or
that armed robbery deserves a more severe punishment than petty theft. If Griffiths
and Hart doubt this, then they owe us a justifcation of such radical skepticism, and
an account of how they can reconcile it with any workable system of criminal justice,
never mind one that countenances the death penalty. For thousands of years public
offcials and ordinary men and women on juries have been doing precisely what
Griffiths and Hart think is impossible, viz. determining which punishments are fitting
for which crimes. They have, of course, by no means done so perfectly. Unjust
punishments have often been meted out. But that simply does not entail that we
have no understanding of what justice requires. To draw such an inference is like
concluding that, since our senses often deceive us, we should never trust them.

Edware Feser, “Hot Air versus Capital Punishment: A Reply to Paul Griffiths and David Bentley
Hart”, in The Catholic World Report, 17 November 2017

Civil justice and civil penal proceedings can of course be more or less just; but civil justice should not try to usurp
what belongs to Divine Justice. This is the whole point of the teaching of the inadmissibility of Capital Punishment.

Human justice and divine justice exist on different planes; St. Thomas Aquinas know this as well, and his discourse
about the killing of the sinner is not on the plane of merely human or civil justice.
Is it not that the state is (somehow) acting as the secular arm of the spiritual potestas (which is
essentially the potestas of God, but incarnate in the Church) when it punishes., and that punishment (in
the strict sense, and referring not its physical execution but to its moral essence and justification) is the
competence of that spiritual power?

Does the vestige of this idea not account for the fact that we are accustomed to think of the state
punishing?

Pius XII will tell us, following the theology of St. Thomas, that the essential function of punishment is
expiation (See above.) As he insists on this point, and as he shows his awareness of how this truth may
sound foreign to those who have become accustomed to the ideological presupposition of secularism, is
he not reminding us that the state’s participation in the punishment of sin is not something to be taken
for granted, but is something that rightfully suscitates philosophical wonder inasmuch as it evidences
the mysterious order of Divine Providence?

Then when Pope Francis proclaims the inadmissibility of Capital Punishment is he not realizing
something that respects and follows this same Thomistic theology of punishment as something that
belongs to the potestas spiritualis (i.e. to God) rather than to the state?

The state punishes, but not, in the final analysis, under its own auspices.

God can and does make use of the state for the punishment of sins; the state participates in God’s
justice either consciously and willingly, or in spite of itself, through a Divine Providence which permits
for mysterious reasons the unjust actuations of the State.

Simply to assign the punishment of sins to the state according to a merely naturalist conception of
Natural Law implies a pagan conception of the state and of sin.

Edward Feser insists that some sins deserve the punishment of death. This is certainly true since we
know that there is such a thing as mortal sin, and a mortal sin is a sin that not only deserves death but
eternal punishment. (Cfr. Luke 23:40 “In our case we deserved it.”) This is a theological truth, but does
not settle the question of Capital Punishment from the point of view of the Social Doctrine of the
Church.

Finally we shall examine what is the fundamental argument that St. Thomas uses to defend the killing of
the sinner: the primacy of the common good.

St Thomas uses the metaphor of the body:

Respondeo dicendum quod, sicut dictum est, licitum est occidere animalia bruta inquantum ordinantur
naturaliter ad hominum usum, sicut imperfectum ordinatur ad perfectum.

Omnis autem pars ordinatur ad totum ut imperfectum ad perfectum. Et ideo omnis pars naturaliter est
propter totum.

Et propter hoc videmus quod si saluti totius corporis humani expediat praecisio alicuius membri, puta cum
est putridum et corruptivum aliorum, laudabiliter et salubriter abscinditur.
 Quaelibet autem persona singularis comparatur ad totam communitatem sicut pars ad totum. Et ideo si
aliquis homo sit periculosus communitati et corruptivus ipsius propter aliquod peccatum, laudabiliter et
salubriter occiditur, ut bonum commune conservetur, modicum enim fermentum totam massam
corrumpit, ut dicitur I ad Cor. V.

I answer that, As stated above (A1), it is lawful to kill dumb animals, in so far as they are
naturally directed to man's use, as the imperfect is directed to the perfect. Now every part is
directed to the whole, as imperfect to perfect, wherefore every part is naturally for the sake of
the whole. For this reason we observe that if the health of the whole body demands the excision
of a member, through its being decayed or infectious to the other members, it will be both
praiseworthy and advantageous to have it cut away. Now every individual person is compared
to the whole community, as part to whole. Therefore if a man be dangerous and infectious to
the community, on account of some sin, it is praiseworthy and advantageous that he be killed in
order to safeguard the common good, since "a little leaven corrupteth the whole lump" (1 Cor.
5:6).

As I have said, one is not to expect here the social doctrine of the Church; but that does not mean
that there is no lofty theology here, one will find that theology on which the Social Doctrine of the
Church will rest. St. Thomas is not endorsing the totalitarian state.24 Yet one might say that he is
endorsing what one might call using a scandalous expression the true totalitarianism: Omnis autem pars
ordinatur ad totum ut imperfectum ad perfectum. Et ideo omnis pars naturaliter est propter totum.

But what is this totum to which man essentially belongs?

Is it not an alienation for a man to be subsumed as a mere subordinate part in a totum which is something other
than he himself?

24
I am thinking of my old Thomist professor of metaphysics at the University of Dallas, Frederick Wilhelmson, to
whom I owe much of my appreciation of St. Thomas and his participation in the pro-life protests of the First Hour:

On June 6, 1970 the Society for a Christian Commonwealth, which published Triumph, and the "Sons of
Thunder" under the leadership of (Frederick "Fritz") Wilhelmsen and (L . Brent) Bozell, conducted "the
Action for Life," which was probably the first anti-abortion demonstration in the United States. Fritz,
students from the University of Dallas, and others appeared on the scene dressed like Spanish Carlists, or
requetes, with red berets, khaki shirts with Sacred Heart patches, and rosaries around their necks.
Wilhelmsen, brandishing a twelve-inch crucifix, read from Matthew 25 and the Book of Revelation,
warning America that it must someday face God and receive judgment for the killing of its children.

Donald J D’Elia , in Citizen of Rome

A prophetic act.

But what to make of the Carlist uniform? I leave that to the reader as an open question. But the Church insists that
a commitment to her social doctrine does not mean a commitment to authoritarian politics.

And it is more and more evident that the pro-life movement damages itself critically when those who claim to
carry its flag suggest that the Culture of Life and the Civilization of Love are to be reached by authoritarianisms.
If man is thus subsumed is the personalist principle not definitively violated, the principle according to which man
must always be treated as an end, and not as a mere means?

What is this whole community of which St. Thomas says that men belong? It is an innocent sounding expression this
“whole community” but what does it refer to?

There is one thing that we do know, that this “whole community” is not the state, because the state is secular and
man is not merely secular, but an essentially religious being who cannot be assimilated into a merely secular state.

And conscious of this, the Church declares Capital Punishment to be inadmissible.

The Church’s teaching on the inadmissibility of Capital Punishment reflects the Church’s constant and consistent
rejection of the recurring forms of theocracy, and of all the counterfeit messianisms. It reflects the Lord’s command
to render unto Caesar what is Caesar and to God what is God’s. It reflects the Lord’s categorical affirmation that his
Kingdom is not of this world. It accords with the words of St. Paul:

True, my conscience does not reproach me at all; but that does not prove that I am acquitted: the Lord
alone is my judge. There must be no passing of premature judgment. Leave that until the Lord comes: he
will light up all that is hidden in the dark and reveal the secret intentions of men's hearts. Then will be the
time for each one to have whatever praise he deserves from God.

I Corinthians 4:4-5

Punishment follows on judgement, and if we are to restrain ourselves in judging, we also are to restrain ourselves in
punishing --something which however does not preclude that the state can judge crimes and punish them inasmuch
as that is demanded by the common good.

(It is also true that the Church, according to Canon Law, can and does punish, but punishment remains somehow in
an of itself a temporal function—as traditional Catholic theology expressed in speaking of the Church’s possessing a
Secular Arm.)

The common good refers to the good of the whole community (not to be identified with the State) in which the
persona singularis is integrated as part within a whole, to which he is ordained sicut imperfectum ordinatur ad
perfectum.

Let us recall that, according to the teaching of Pius XII, when the state punishes, it punishes not merely according to
the merely temporal ends proper to itself, but following a Providential, Eschatological finality: namely, the expiation
of sin.

4. The whole community of which St. Thomas writes is not the state, which is temporal human reality, but rather
final human reality, to which man is ordained sicut imperfectum ordinatur ad perfectum. 25

25
I have now acquired and am reading the Kindle addition of the important study of Massimo Borghesi, The Mind
of Pope Francis, now translated into English. Here I found a text of Jorge Bergoglio regarding the Two Cities of St.
Augustine’s De Civitate Dei:

At that time Augustine, a man who had known unbelief and materialism, found the key to giving
form to his hope through a profound theology of history, developed in his book The City of God.
In it, far exceeding the “official theology” of the empire, the saint presents us with a
fundamental hermeneutical principle of his thought: the schema of the “two loves” and the two
“cities.” In summary, this is his argument. There are two “loves”: the love of self, which is
 aggressively individualistic, exploits others for one’s own purposes, considers what is common
only in reference to its usefulness to oneself, and rebels against God; and holy love, which is
primarily social, seeks the common good, and follows the commandments of the Lord. Around
these “loves” or ends the “two cities” are organized: the “earthly” city and the city “of God.” The
first is inhabited by the wicked, the other by the “saints.” But the interesting thing about
Augustinian thought is that these “cities” are not present in history, that is, they cannot be
identified in this or that secular reality. The city of God, it is clear, is not the visible church.
Indeed, many of those who make up the celestial city reside in pagan Rome, and many of those
in the earthly city are members of the Christian church. The “cities” are eschatological entities:
only at the Last Judgment will their defined profiles become clear, like the weeds and the wheat
after the harvest. Meanwhile, here in history, they remain inextricably intertwined. “Secular” is
precisely the historical existence of the two cities. Even though from the eschatological point of
view they are separate from each other, in the saeculum, in the time of this world, they cannot
be clearly distinguished and separated. The dividing line passes . . . through the freedom of
human beings, personal and collective.92

Then-Cardinal Bergoglio went on to ask:

Why do I repeat these thoughts of a fifth-century bishop? Because they teach us a way of
looking at reality. Human history is the ambiguous field in which various projects are in play,
none of which are immaculate from the human point of view. But we should recognize that
moving through all of them are both the “unclean love” and the “holy love” of which Saint
Augustine wrote. Avoiding any Manichaeism or dualism, it is legitimate to try to discern, on one
hand, historical events as “signs of the times,” seeds of the kingdom, and, on the other hand,
those events that—disconnected from the eschatological end—serve to impede the attainment
of the highest destiny of humanity. No human project is “immaculate”; this is Augustine’s
realism. On the other hand, Bergoglio says, his insight of the two “intertwined” cities allows us
to overcome the “Manichaeism or dualism” that stands at the center of every political-religious
messianism.93

92. Jorge Mario Bergoglio, “Parola e amicizia” (2002), in Jorge Mario Bergoglio–Pope Francis, Nei
tuoi occhi è la mia parola: Omelie e discorsi di Buenos Aires 1999–2013 (Milan: Rizzoli, 2016),
144–145.

93. Ibid., 145.

Citted in Borghesi, Massimo. The Mind of Pope Francis: Jorge Mario Bergoglio's Intellectual Journey .
Liturgical Press. Kindle Edition.
The ideal prince of psalm 101 to which St. Thomas alludes in the article of the Summa which we are dealing with
who will “reduce to silence [i.e. annihilate] all who are wicked in this country” does not do so according to an earthly
and temporal office.

The liturgy of the Church interprets this this ideal prince as the Messiah who will bring eschatological justice to the
world, and realize the eschatological Kingdom of God, killing the sinner and rewarding the just man. John the
Baptist prophesies the coming of Jesus with these words:

His winnowing fan is in his hand to clear his threshing floor and to gather the wheat into his barn; but the
chaff he will burn in a fire that will never go out.

Luke 3:17

And in the Gospel of Mercy (St. Luke) we also hear Our Lord finish his Parable of the Pounds with these terrible
words:

But as for my enemies who did not want me for their king, bring them here and execute them in my
presence.

Luke 19:27

The Victory of the Messiah over evil-doers will be an eternal victory.

And yet eschatology and this present life do not appear as neatly compartmentalized. The Christian lives in the last
times. The Gospel speaks of irruptions of eschatological justice in this present world (as when for instance when
Our Lord predicts the fall of Jerusalem) and this discourse has the purpose of encouraging us to be watchful, which
means living Christian virtues.

First among these virtues, however, is charity, and the Lord’s admonition of watchfulness, sobriety and fear of God
is fulfilled as we obey the command of Jesus not to judge our brothers prematurely, and to practice the mercy with
which Jesus has treated us, for we do not know the hour of the coming of the Lord.

The state can become at times the instrument of God’s chastisements and punishments; but it can also become
the Beast, the enemy of God’s interests, the enemy of the People of God. Therefore there is need of a discernment
which excludes the complacency which finds its expression in rigid modes of thought.

The state is not something static and eternal, but is in its own essence and nature temporal.

The affirmation of the inadmissibility of the Death Penalty seems perfectly consonant with the faith of the People
of God in the certain coming of the Lord who will reward those who do God’s will and punish evil-doers.26

Borghesi then goes on to show how this Augustinian conception of history is reflected also in the political thought
and ecclesiology of Benedict XVI.

26
Scripture often represents the eschatological annihilation of evil doers. Pope Francis has taken up this way of
speaking sometimes, and he has been accused in some quarters of denying the eternity of hell and teaching
“annihilationism”; but what he is teaching, and what Scripture is teaching by speaking of the annihilation of evil-
doers is really something quite different. He is teaching the ultimate victory of God’s will over the wickedness of
the evil one, the victory of God over the rebellious will of Satan. Satan will be thoroughly defeated. Satan will not
know the satisfaction of maintaining his willful rebellion, but his rebellious will will be crushed. His will will be
frustrated and thoroughly defeated. This teaching of Scripture and of Pope Francis goes against a merely positive
The common good, the good of the whole community to which St. Thomas refers, can be nothing other than the
good of Man: a good to which the persona singularis is ordained as the imperfect to the perfect.

It is a good which is not simply the same as man, but is also not simply something alien to him

This good of man is rather is the fullness of man, to which the persona singularis is ordered as the imperfect is
ordered to the perfect, the Perfect Man27 of which Scripture speaks through the pen of St. Paul:

When it says, "he ascended," what can it mean if not that he descended right down to the lower regions
of the earth? The one who rose higher than all the heavens to fill all things is none other than the one
who descended. And to some, his gift was that they should be apostles; to some, prophets; to some,
evangelists; to some, pastors and teachers; so that the saints together make a unity in the work of
service, building up the body of Christ. In this way we are all to come to unity in our faith and in our
knowledge of the Son of God, until we become the perfect Man, fully mature with the fullness of Christ
himself.

Ephesians 5:9-13

view of law in which there is nothing really wrong with sin, nothing really irrational, and in which a tyrannical God
assigns “punishments” to sins arbitrarily, and dissociates punishment and justice.
27
Cfr. John Paul II in Redemptor Hominis, n. 8:

In its penetrating analysis of "the modern world," the Second Vatican Council reached
that most important point of the visible world that is man, by penetrating like Christ the
depth of human consciousness and by making contact with the inward mystery of man,
which in biblical and non-biblical language is expressed by the word "heart." Christ, the
Redeemer of the world, is the one who penetrated in a unique, unrepeatable way into the
mystery of man and entered his "heart." Rightly therefore does the Second Vatican
Council teach: "The truth is that only in the mystery of the Incarnate Word does the
mystery of man take on light. For Adam, the first man, was a type of him who was to
come (Rom 5.14), Christ the Lord. Christ, the new Adam, in the very revelation of the
mystery of the Father and of His love, fully reveals man to himself and brings to light his
most high calling." And the Council continues: "He who is the `image of the invisible
God' (Col. 1:15), is Himself the perfect man who has restored in the children of Adam
that likeness to God which had been disfigured ever since the first sin. Human nature, by
the very fact that it was assumed, not absorbed, in Him, has been raised in us also to a
dignity beyond compare. For, by His Incarnation, He, the Son of God, in a certain way
united Himself with each man. He worked with human hands, He thought with a human
mind. He acted with a human will, and with a human heart He loved. Born of the Virgin
Mary, He has truly been made one of us, like to us in all things except sin,"(47) He, the
Redeemer of man.