Pope Francis on just wars, capital punishment and voluntary assisted dying

Pope Francis and his Congregation for the Doctrine of the Faith have recently made pronouncements on these life and death issues. The Church’s teaching on the taking of human life has never been particularly coherent.

As a religious institution, the Church is entitled to its inconsistencies, but the real issue for those approaching the end of life is whether our civil laws should reflect the doctrines of a particular religion when the majority of the population do not accept them, and the application of the law in many cases is inherently cruel.

The Church has an absolute prohibition on abortion, the direct taking of human life at its start, and, at the other end of life, there is the same absolute prohibition on euthanasia and voluntary assisted dying. But in between those two life extremes, the direct and deliberate taking of human life is permissible in the case of self-defence, just wars and capital punishment.

In his latest encyclical Fratelli Tutti, Pope Francis has revised the Church’s position on the last two. He states that it is “very difficult to invoke the rational criteria elaborated in earlier centuries to speak of the possibility of a ‘just war’.” Few would disagree with him. But in coming to that conclusion, Pope Francis adopts the consequentialist reasoning that the Church has so often condemned – today’s circumstances are such that wars are no longer justified.

In dealing with capital punishment, Pope Francis continues with the change of doctrine that he initiated in 2018 when he revised Pope John Paul II’s Catechism which allowed the deliberate taking of human life in the case of serious crimes. In looking for a theological justification for the new doctrine, about the best he could find was a quote from St. Augustine, a supporter of capital punishment, who, on one occasion, requested the civil authorities not to execute the murderers of two priests on the grounds that the perpetrators might repent and reform.

Francis makes no mention of the support for capital punishment of a far more influential theologian, St. Thomas Aquinas, who stated in his Summa Theologica: “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 …” Neither does Francis mention Pope Pius XII, who in 1952, supported the morality of capital punishment on the same grounds, nor Pope John Paul II’s 1983 catechism that did likewise. Francis again adopts the same consequentialist arguments that secular opponents of capital punishment have been raising for a very long time: the availability of prisons and the imperfections in every legal system that could lead to innocent people being executed.

There is no suggestion in the encyclical that the Church is changing its view about self-defence, or indeed about deliberate killing in the defence of others, for example, to stop a genocide. The encyclical does not mention the voluntary assisted dying legislation that is gaining support in Western countries, but that had been comprehensively dealt with by his Congregation for the Doctrine of the Faith in a letter of 14 July 2020, Samaritanus Bonus. It reiterated the Church’s condemnation of voluntary assisted dying legislation as being “a grave violation against the law of God”. Despite the Church’s own historical acceptance of some forms of deliberate killing, the letter confirms its absolute prohibition on using death as a means of avoiding suffering in the dying process.

The letter, however, does contain an interesting admission: palliative care does not always remove suffering. It then justifies the suffering on religious grounds: that we are destined for eternity, the example of Jesus dying on the cross etc.

The letter relies on Thomas Aquinas’ doctrine of double effect – described by the eminent legal philosopher H.L.A. Hart as “a piece of complete sophistry” – in stating that it is permissible to increase doses of painkillers (“titrating”) and to use terminal sedation even though it advances the time of death. The sophistry arises because intention includes doing something knowing that a particular result will occur. When a doctor finds that his last dose of morphine is not removing the pain, the dose is slowly increased until the patient is permanently relieved of their misery. In advancing the time of death, the doctor subjects the patient to a trial and error method where the dose can only be increased to the lethal level when the doctor is satisfied that the last one was not working. The doctor is forced to act in this manner because of the way the law of homicide currently operates.

The law has adopted Aquinas’ sophistry, but there is nothing unusual in that, because the law often uses fictions to draw lines in the legal sand: a horse is a motor vehicle for the purposes of motor traffic laws; a person under the age of 16 is incapable in law from consenting to sex, but on their 16th birthday, they become capable. The current law affecting the dying is inherently cruel, and it has to be the main reason for such strong public support, even among Catholics, for voluntary assisted dying legislation. Too many people have been watching the “titrating” practices of palliative care.

The Church’s position is that it is never justified to choose death as a means of relieving suffering, yet in its 1,700-year support of capital punishment, it justified the direct taking of human life to relieve the potential suffering of the community at the hands of bad people. Not even Aquinas tried to apply his doctrine of double effect to capital punishment. When a man is on the gallows about to be dropped, his death is not an accidental effect of protecting the community. It is a direct killing to protect the community.

Nor has the Church always had an absolute prohibition on suicide in the face of threatened suffering. As Michel de Montaigne points out in his Essays, the Church canonized St. Pelagia, who suicided with her mother and sisters rather than be raped by advancing soldiers. It also canonized St. Sophronia, who suicided when the emperor Maxentius threatened to rape her. The doctrine of double effect could not apply because they deliberately chose death as a means of avoiding suffering.

The Church as a religious institution is entitled to its inconsistencies, including the way it treats the taking of human life. The real issue is whether our civil laws should reflect the Church’s doctrines when the vast majority do not accept them, and neither do they accept the religious justifications for suffering arising from the current practice of titration.

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Kieran Tapsell is a retired civil lawyer, author and translator.

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