Pope Francis, the Death Penalty, and the Development of Doctrine

October 16, 2017

In 2012, one Rick Lowery, Ph.D., writer, Bible Scholar, and Disciples of Christ minister, published an article in HuffPost entitled “Abortion: What the Bible Says (and Doesn’t Say).” [1] He made therein three points:

(1) the Bible doesn’t talk about abortion;

(2) the Bible says that the “first human became a “living being” (nefesh hayah, “a living breath”) when God blew into its nostrils and it started to breathe. Human life begins when you start breathing, biblical writers thought,” and

(3) “Exodus 21:22-25 describes a case where a pregnant woman jumps into a fight between her husband and another man and suffers injuries that cause her to miscarry. Injuries to the woman prompt the normal penalties for harming another human being: an eye for an eye, a tooth for a tooth, a life for a life. Killing the woman is murder, a capital crime,” but that the “miscarriage is treated differently, however — as property loss, not murder. The assailant must pay a fine to the husband. The law of a life for a life does not apply. The fetus is important, but it’s not human life in the same way the pregnant woman is.”

His conclusion is that one cannot find a biblical justification for prohibiting abortion.

But the Bible does not say that life begins when one starts breathing. It says that “the life of all flesh is in the blood….” (Leviticus 17:14) [1] And, in humans, blood cells develop in the embryo during the 5th week of pregnancy. [2] So we’re going to have to prohibit abortion after the 4th week of pregnancy using Dr. Lowery’s reasoning.

The Scripture passage that Dr. Lowery cites from Exodus reads this way:

“If men quarrel, and one strike a woman with child, and she miscarry indeed, but live herself: he shall be answerable for so much damage as the woman’s husband shall require, and as arbiters shall award. But if her death ensue thereupon, he shall render life for life. Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe.” (Exodus 21:22-25) [3]

He concludes that since only a fine was levied for the death of a fetus, a fetus is not considered a human life according to the Bible, and that, therefore, the Bible cannot be used as a justification for prohibiting abortion. But there is another interesting passage from the same chapter of Exodus, immediately preceding the one cited by Dr. Lowery, which should be considered in this connection:

“He that striketh his bondman or bondwoman with a rod, and they die under his hands, shall be guilty of the crime. But if the party remain alive a day or two, he shall not be subject to the punishment, because it is his money.” (Exodus 21:20-21)

So if we are to follow Dr. Lowery’s reasoning, there should be no penalty imposed on a slave owner who kills his slave if the slave survives the injury for a day or two. After all, the slave is the master’s property.

Now we shouldn’t suppose that Dr. Lowery would actually argue that there should be no penalty for a master killing his slave just because the slave survives the injury inflicted on him for a day or two. But he quotes from the same chapter of Exodus to justify abortion without a blush.

Nowadays, we have a scientific understanding of the development of a child in the womb that informs us that life begins at fertilization, when a new organism is formed. [4] An organism with human parents can be nothing but a human. Thus, taking the life of that organism is taking the life of a human. It is interesting, however, to observe the political “left” attempting to take refuge in the Bible in order to engage in this particular form of science denial.

Therefore, Dr. Lowery is wrong when he says that abortion is not specifically prohibited in the Bible. It is prohibited by the Fifth Commandment, which says, “Thou shalt not kill.” (Exodus 20:13) [5] Dr. Lowery might argue that the commandment doesn’t specifically forbid the killing of the unborn. But we’ve seen that sort of logic before. It was infamously used by Judge Roy Bean, who freed “a man accused of killing a Chinese rail worker on the grounds that Bean knew of no law making it a crime ‘to kill a Chinaman.’” [6]

So much for the sola scriptura approach to abortion. But sola scriptura is a doctrine that is really only an extreme version of an approach that holds that Christian doctrine is somehow frozen in time. For example, we see it manifested in those who deny the validity of the Second Vatican Council. It is the teaching of the Church, on the other hand, that Christian doctrine can develop with the times to meet new situations, while always maintaining fidelity to the Deposit of Faith. [7] Thus we read in the Catechism of the Catholic Church:

“The social doctrine of the Church developed in the nineteenth century when the Gospel encountered modern industrial society with its new structures for the production of consumer goods, its new concept of society, the state and authority, and its new forms of labor and ownership. The development of the doctrine of the Church on economic and social matters attests the permanent value of the Church’s teaching at the same time as it attests the true meaning of her Tradition, always living and active.” (CCC, Sec. 2241) [8]  

There was a time when the Church did not take a position against the capital punishment. Indeed, there was a time when “the death penalty was a possible punishment in the Papal States. It was only in 1969 that Pope Paul VI formally banned the death penalty, even though it had not been imposed since 1870.” [9]

But we have seen a development in the approach of the Church to this ultimate penal sanction. In point of fact, we have seen a development since the first edition of the Catechism itself. As the Catholic News Service points out,

“The first edition of the Catechism of the Catholic Church, published by St. John Paul II in 1992, recognized ‘as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty.’ At the same time, it said, ‘bloodless means’ that could protect human life should be used when possible.

“But the language was formally changed in 1997 after St. John Paul II issued his pro-life encyclical, ‘Evangelium Vitae.’ Since then, the catechism has specified that the use of the death penalty is permissible only when the identity and responsibility of the condemned is certain and when capital punishment ‘is the only possible way of effectively defending human lives against the unjust aggressor.’”

Now Pope Francis is calling for “a more adequate and coherent treatment” of capital punishment in the Catechism. [10] “This issue,” he said, “cannot be reduced to a mere résumé of traditional teaching without taking into account not only the doctrine as it has developed in the teaching of recent Popes, but also the change in the awareness of the Christian people which rejects an attitude of complacency before a punishment deeply injurious of human dignity. It must be clearly stated that the death penalty is an inhumane measure that, regardless of how it is carried out, abases human dignity. It is per se contrary to the Gospel, because it entails the willful suppression of a human life that never ceases to be sacred in the eyes of its Creator and of which – ultimately – only God is the true judge and guarantor.”

“Here,” he said, “we are not in any way contradicting past teaching, for the defence of the dignity of human life from the first moment of conception to natural death has been taught by the Church consistently and authoritatively. Yet the harmonious development of doctrine demands that we cease to defend arguments that now appear clearly contrary to the new understanding of Christian truth.  Indeed, as Saint Vincent of Lérins pointed out, “Some may say: Shall there be no progress of religion in Christ’s Church?  Certainly; all possible progress.  For who is there, so envious of men, so full of hatred to God, who would seek to forbid it?” (Commonitorium, 23.1; PL 50). It is necessary, therefore, to reaffirm that no matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person.”

What will another amendment to the Catechism to accord with the Holy Father’s remarks look like? The Catechism currently says this on the subject:

“Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

“If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.

“Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm—without definitively taking away from him the possibility of redeeming himself—the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically non-existent.’” (CCC, Sec. 2267) [11]

Considering this language as written, it is easy to understand the pontiff’s concern. There are two kinds of deterrence involved in criminal punishment: specific deterrence and general deterrence. Specific deterrence has to do with keeping the offender from committing crimes in the future. General deterrence is directed toward the general public. The idea is that people will observe how the criminal offender is dealt with, and will thereby be discouraged from committing the same crime themselves.

The language of the Catechism is directed toward specific deterrence. And there are few, if any, reasons in the modern world for executing someone in order to achieve that purpose. In places where, due to a lack of infrastructural development, executions remain necessary to achieve specific deterrence, changes can be made, and should be. It is possible for dangerous people to be suitably confined so as to make the death penalty unnecessary, and that is the course that societies everywhere should take.

But the language of the Catechism might be misinterpreted, whether innocently or cynically, to refer to general deterrence. Some might try to argue that “the only possible way of effectively defending human lives against the unjust aggressor” is to make an example of him by killing him so that others will be afraid to do the same thing. Of course, the fact that the language of the Catechism is that human lives are to be defended against “the unjust aggressor” should be sufficient to notify everyone that is the criminal defender that is to be defended against, not hypothetical members of the public. But the wisest course is always to prepare against human ingenuity in making dishonest arguments.

We can expect members of a certain political faction to once again try to paint Pope Francis as abandoning Catholic doctrine. They will say that he is introducing “confusion” into Catholic teaching. On the contrary, he is making it clearer. In the modern context, there really is no reason for the death penalty. Pope Francis has just made that unambiguous, if it wasn’t so before. He isn’t tampering with Catholic doctrine; he is teaching the Gospel. That’s his job, even if there are people who wish he would stop.

Jack Quirk