ORGAN OF THE ROMAN THEOLOGICAL FORUM
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Living Tradition, Oblates of Wisdom, P.O. Box 13230, St. Louis, MO 63157, USA
|No. 119||Roman Theological Forum | Article Index | Study Program||September 2005|
TORTURE AND CORPORAL PUNISHMENT AS A PROBLEM IN CATHOLIC THEOLOGY
Part II. The Witness of Tradition and Magisterium
First, some key references will be presented outlining the historical development of Catholic thinking, teaching and legislation relevant to the ethical evaluation of the direct infliction of severe bodily pain. This will be followed by some observations on the problem of doctrinal coherence and continuity in this matter, taking into account also the biblical data surveyed in Part I of this study.
A. Teaching of Fathers, Jurists, and Theologians
A1. Tertullian (3rd century). This early representative of patristic thought follows the radically pacifist tendency of not a few Christians at that time who tended to take the Gospel’s ‘counsels of perfection’ as universally binding precepts. Certainly, in Tertullian’s judgment, any complicity in torture – either ordering it or personally applying it – is definitely ruled out for a disciple of Jesus. Arguing that no soldier, after converting to Christianity, should continue in the army, especially given its pagan character, he asks rhetorically, "[S]hall the son of peace take part in the battle when it does not become him even to sue at law? And shall he apply the chain, and the prison, and the torture, and the punishment, who is not the avenger even of his own wrongs?"1 In similar vein, discussing "what offices a Christian man may hold", he refers to a recent case wherein a Church member had the opportunity to receive high public office as a magistrate. Tertullian argues that it would be morally impossible for this man to satisfy both the Gospel’s demands and those of Roman law, for that would require him to abstain not only from all public pagan sacrifices, oaths, etc., but also from "sitting in judgment on anyone’s life or character, . . . neither condemning nor fore-condemning; binding no one, imprisoning or torturing no one".2 These are the earliest known explicit Christian statements on the morality of torture.
A2. Emperor Constantine I (4th century). Soon after his emancipation of Christianity, and under its influence, Constantine begins a long and slow process: the gradual reduction and elimination of certain brutal practices sanctioned by pagan Roman law. "During the years 315-321 he issued laws prohibiting the torture and killing of slaves by their masters, . . . safeguarding children from major physical abuse by their parents; and protecting convict prisoners from cruel treatment, including abolition of the practice of branding them on the face, ‘which is formed in the image of heavenly beauty’. The world now heard, from an Emperor of Rome, that man is made in the image of God, and that this, and only this, is the indestructible foundation of his just rights."3 But while the use of torture was thus quickly prohibited on the part of private citizens, it was to remain part of the legal process, applicable by public officials of the Christian empire, for centuries to come.
A3. St. Augustine (5th century). This great doctor is much less absolute than Tertullian in regard to confession-extracting torture. In the context of highlighting the inevitable woes and unhappiness that attend life in the ‘city of man’ as a result of sin, Augustine draws attention to the plight of the accused under the current procedures of Roman Law. But while he succinctly pinpoints the basic, horrible incongruities, he condemns neither the judges nor the laws that prescribe and implement such procedures. While he concedes that a man of "profound considerateness and finer feeling" would personally shrink from involvement in torture, his bottom line is that the judge who does agree to accept this terrible responsibility is . . . "guiltless". Here are Augustine’s key observations:
[The accused] is tortured to discover whether he is guilty, so that, though innocent, he suffers most undoubted punishment for crime that is still doubtful; not because it is proved that he committed it, but because it is not ascertained that he did not commit it. Thus the ignorance of the judge frequently involves an innocent person in suffering [and even in death, when the accused falsely confesses a capital crime out of sheer terror of unendurable pain]. . . . If such darkness shrouds social life, will a wise judge take his seat on the bench or no? Beyond question he will. For human society, which he thinks it a wickedness to abandon, constrains him and compels him to this duty. . . . These numerous and important evils he does not consider sins; for the wise judge does these things, not with any intention of doing harm, but because his ignorance compels him, and because human society claims him as a judge. And if he is compelled to torture and punish the innocent because his office and his ignorance constrain him, is he a happy as well as a guiltless man?4
A4. The Theodosian Code (5th century).5 This is a compilation of imperial laws dating from the Edict of Milan (313) to the year 438, during the reign of Emperor Theodosius II. In other words, this code gives us a clear idea of the original Christian legal system that St. Augustine lives under and comments upon in The City of God (cf. A3 above).
Catholicism has now been explicitly and emphatically the Roman state religion since the imperial edict of February 28, 380,6 but the laws remain to a great extent in fundamental continuity with the old pagan legislation – including its reliance on interrogatory torture (quaestio) as a standard part of judicial practice for serious crimes. It was even prescribed, under certain circumstances, for witnesses, not just those accused of a crime.7 Infliction of severe bodily pain is also included in the Code as punishment for those duly convicted of crime. We read, for instance, that corrupt public officials are to suffer "the punishment of flogging and torture".8 As for those guilty of crime against the Emperor in person (lèse-majesté), "tortures shall tear them to pieces".9 All in all, the Theodosian Code provides for torture, either as quaestio or as punishment for convicted criminals, in no less than 40 legally specified situations.10 However the higher clergy are exempt: bishops and priests (but not "clerics of a lower grade") "shall be able to give their testimony without the outrage of torture, that is, without corporal punishment"11
The treatment of heretics and schismatics in this original Christian respublica was severe, but milder than in subsequent mediaeval times. They were not put to death, but were reduced to poverty by the confiscation of their property, and were subject to legal disabilities (incapable of making testaments). Such, at least, was the treatment awaiting those heretics/schismatics considered most troublesome in the late 4th and early 5th centuries, namely, the Donatists. They are mentioned by name in the Code and their practice of re-baptism is singled out for special excoriation.12 Only if there were aggravating circumstances would they have to fear corporal punishment: for instance, in the case of Donatist servants/slaves found surreptitiously using their Catholic masters’ premises for carrying out re-baptisms, their punishment is prescribed as flogging with leaden-tipped whips and exile for life.13 Apostates, that is, ex-Christians who had returned to the old pagan cults, were also declared outside the law and incapable of making valid testaments.14
Nevertheless, not only Catholics enjoyed freedom of assembly; indeed, those who should attack the pax romana by disturbing voluntary assemblies were threatened with the punishment due to treason (i.e., death).15 Only Catholic houses of worship, however, could be dignified with the name of "churches".16
While religious offenders did not have to fear being burnt to death like their counterparts in the following millennium, practicing homosexuals – at least those who took the receptive, ‘female’ role in an act of sodomy – were not so fortunate. An imperial decree of August 6, 390 declares that such offenders against the law of nature "shall expiate a crime of this kind in avenging flames in the sight of the people".17 The same fate awaits any Jews who molest or assail Christians.18
A5. The Digest of Justinian I (6th century).19 It cannot really be said that the law-reforming emperor, any more than St. Augustine in the previous century, takes a clear-cut ethical stand against torture as such. However, while Justinian does not take the radical step of abolishing it, he clearly shares Augustine’s reservations about interrogatory torture, and so his attitude to the practice is more critical than that of the first Christian emperors of the 4th and 5th centuries. The leaven of the Gospel is gradually producing its effect in Western society.
The Digest (A.D. 533) is basically an organized compilation of quotations from earlier Roman Law decisions, legal principles and commentaries (by Ulpian and other classical jurists) from both Christian and pre-Christian times. It does not in itself constitute new legislation, but rather, is a kind of jurisprudential reference work, setting out established practices and precedents. Among the many hundreds of sections of this massive work dealing with all aspects of Roman Law, just one (Part 48, section 18) is entitled De quaestionibus (the commonly employed euphemism for interrogatory torture). This section in turn quotes dozens of specific norms from previous centuries, and constitutes a kind of short handbook of accepted jurisprudence regulating the use of torture: under what conditions it may be employed, for what sorts of crimes, for which classes of persons, differences in this regard between slaves and freemen, when witnesses (especially slaves) as well as accused can be tortured, relating evidence gained from torture to that gained from other sources, etc.
However Justinian is clearly aware that in spite of all these regulations supposedly guarding against injustice in the use of interrogatory torture, its results are in practice very far from satisfactory. The Emperor makes a point of including among his various authoritative sources on this matter a maxim from "the Constitutions", and then departs from his usual practice in the Digest by adding what appears to be his own personal observation:
It is declared in the Constitutions that torture should be considered neither as always trustworthy, nor as always untrustworthy. And as a matter of fact it is a fickle and dangerous business that ill serves the cause of truth (etenim res fragilis est et periculosa, et quae veritatem fallat). For there are not a few who are possessed of such powers of endurance, or such toughness, that they scorn the pain of torture, so that there is no way the truth can be wrung from them. Others, however, have so little resistance that they will make up any kind of lie rather than suffer torment; and that can lead them to keep changing their story, even incriminating others as well as themselves.20
This marked diffidence regarding the efficacy of torture, coming from so high an authority, probably contributed to the phasing out of this cruel practice. Three centuries later, in the time of Pope St. Nicholas I, it had evidently vanished from both the theory and practice of Christian Rome (cf. B1 below).
A6. As regards Charlemagne’s revived Western Empire, it should be noted that "No traces of torture can be found in Frankish law" at the early period.21
A7. St. Thomas Aquinas (13th century). The Angelic Doctor never treats of torture in secular judicial inquiries. However, without mentioning the word, he does justify the contemporary Inquisition’s use of torture (recently introduced in 1252 by Pope Innocent IV – cf. B4 below). Like Augustine eight centuries earlier justifying imperial force used against the Donatist schismatics, Thomas appeals in his sed contra to the Gospel itself: the compelle intrare of Lk 14: 23 (parable of the king and wedding guests). In considering whether unbelievers may be "compelled" to the faith, he first acknowledges that those who have never been Christians (i.e., Jews, pagans and Muslims) may not be forced to embrace the faith, but then continues: "On the other hand, there are unbelievers who at some time have accepted the faith, and professed it, such as heretics and all apostates: such should be submitted even to bodily compulsion, that they may fulfil what they have promised, and hold what they, at one time, received".22
Consistently with the fundamental idea of forcing a man to confess an offence, St. Thomas does not recognize for the accused a right corresponding to the U.S. Constitution’s Fifth Amendment. In considering whether one may lie to a judge in order to protect oneself, Aquinas teaches that while the accused is not bound to answer every possible question that might incriminate him, he may never lie, and indeed, is bound to answer the judge truthfully, revealing his own guilt, "under the laws of evidence" (secundum ordinem juris), as for instance when there are well-founded rumors, or clear indications, or semi-complete proof [of his guilt]".23
A8. St. Thomas Aquinas (13th century). He also discusses bodily mutilation (ST, IIa IIae 65, 1) and the thrashing of children by parents and slaves by their masters (65, 2). His justification of these practices as punishments for proven offences essentially just throws the ball back into a couple of other courts: (a) as regards authority, into that of Sacred Scripture, with the sed contra appealing in the case of mutilation to the lex talionis (Ex. 21: 24, Lv 24: 19-20), and to the books of Proverbs and Sirach in the case of flogging (cf. references A10-A15 in Part I of this study); and (b) as regards inherent reasoning, into that of capital punishment, using a simple a fortiori argument (i.e., if competent authority may legitimately take life itself as punishment, then all the more may it inflict lesser bodily penalties).
A9. Early Catholic abolitionists (16th-17th centuries). Partly in reaction to Renaissance extremes in the use of torture (tyrannical absolute monarchies, witch-burning fanaticism, etc.), some Catholic scholars begin to denounce it as an un-Christian practice, demanding its abolition. The honor of being the first to call publicly for a return to the more truly evangelical tradition of the first millennium appears to belong to Louis Vives, a 16th-century professor at Louvain University. He proclaims that torture was an invention of tyranny, and that it is shameful that Christian nations are resorting to such cruelty while even barbarian peoples have rejected it.24 Vives is followed by (among others) F. von Spee, Cautio Criminalis (1631); J. Schaller, Paradoxon de tortura in Christiana republica non exercenda (1657); and A. Nicolas, Si la torture est un moyen seur a vérifier les crimes secrets (1682).25
A10. Cardinal Juan De Lugo (17th century). Nevertheless, against the kinds of arguments advanced by the aforesaid writers, this renowned Spanish Jesuit – possibly the most respected Catholic moral theologian of his century – maintains in his 1642 treatise De iustitia et iure (37: 13) that worse evils to the common good would follow if torture were not allowed. (Many other lesser known Catholic writers of this period continue to argue on similar lines.)
A11. St. Alphonsus Liguori (18th century). This saint and doctor of the Church – the "prince of moral theologians" – seems to have been the last noted Catholic moralist to defend judicial torture. In his Theologia Moralis, he does not so much argue for, but rather, takes for granted, the ethical legitimacy of the practice as such, and concerns himself only with the procedures and restrictions which he thinks should be followed as safeguards against excessive cruelty and injustice. After all, he is scarcely alone in endorsing torture, and cites a total of ten earlier approved Catholic authors (de Lugo and others) whose teachings he synthesizes in this section of his own classic work. St. Alphonsus considers three questions: (a) Under what conditions can a judge proceed to have an accused person tortured (#202)? Answer: the judge may only "descend to torture" as a last resort, i.e., when full proof cannot be obtained by non-violent means; next, there must already be "semi-complete proof" (semiplenam probationem) of the accused’s guilt arising from other evidence; and finally, certain classes of persons are to be exempt from torture, either because of their frailty or their great value to society: "men of great dignity", knights of equestrian orders, royal officials, soldiers, doctors [probably in the general sense of learned men] and their children, pre-pubescent children, senile old folks, pregnant women, and those who are still weak after childbirth. (b) To what extent may the accused be tortured (#203)? Answer: the more convincing the already-existing evidence for his guilt, the more severely he may be tortured, but – taking into account the varying estimated endurance-levels of different individuals – never so severely that "it is morally impossible for him to endure" the pain. If that level of cruelty is in fact reached, "the confession thus extorted will be involuntary and so must be considered legally null and void", even if the accused, for fear of further torment, subsequently ratifies his confession outside the torture chamber in the presence of the judge. (c) Whether one who has already been tortured may be tortured again (#204)? Answer: not if he refuses to confess during the first torture session (unless new independent evidence against him subsequently comes to light). In that case he must be set free. But if he confesses under torture, and then retracts that confession before the judge, he may be tortured again – and even a third time if the same thing happens after the second torture session. But if he confesses under torture a third time, and yet again subsequently retracts in the presence of the judge, he must be released. For the judge then must presume that his three confessions were all forced and involuntary – and therefore invalid.26
A12. Fr. (later Cardinal) Pietro Palazzini, 1954. As recently as less than a decade before Vatican Council II, this highly respected moral theologian seems less than unequivocal in condemning torture for extracting confessions. Indeed, according to his apparent view of the doctrinal status quaestionis, the magisterial jury is basically still out over the morality of this practice, so that Catholic moralists remain free in principle to express contrasting opinions. After summarizing St. Alphonsus’ qualified defense of torture, based as it was on the premise that the common good may at times require such extreme measures, Palazzini continues, almost in the style of a ‘neutral’ observer: "Today, however, that current of [Catholic] opinion is predominant which takes its stand on the need to safeguard the rights of the human person, by virtue of which the criminal has a right to inviolability in soul and body" that trumps any appeal to the common good. He then continues in the same vein:
Other reasons [i.e., other than human rights per se] are very weighty, especially today when sophisticated investigative methods aided by scientific expertise render much less useful any recourse to methods [i.e., torture] which, to say the least, are so imperfect. Public opinion, which carries a certain weight among the various means of deciding on specific social goals, is today clearly against the use of torture.27
When it comes to the infliction of torture as punishment for those proven guilty, Palazzini unambiguously judges it permissible in principle, for the reason already adduced by Aquinas: "The liceity of torture as afflictive punishment cannot be doubted, given the liceity of the death penalty and that of mutilation and whipping – both equally afflictive".28
A13. Compendium of the Social Doctrine of the Church (2005)
In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed. . . . International juridical instruments concerning human rights correctly indicate a prohibition against torture as a principle which cannot be contravened under any circumstances.29
B. Popes and Councils
B1. Pope St. Nicholas I, Response Ad Consulta Vestra, November 13, 866. This is a long document setting out norms for civil and ecclesiastical matters, addressed to a delegation from the Bulgarian prince Boris, who with most of his people has recently converted to the faith, and is now seeking papal guidance on how a Christian society ought to be run. Nicholas here not only echoes Augustine’s objections to judicial torture, but (unlike the said Doctor) condemns the practice unequivocally. Section 86 reads as follows:
If a [putative] thief or bandit is apprehended and denies the charges against him, you tell me your custom is for a judge to beat him with blows to the head and tear the sides of his body with other sharp iron goads until he confesses the truth. Such a procedure is totally unacceptable under both divine and human law (quam rem nec divina lex nec humana prorsus admittit), since a confession should be spontaneous, not forced. It should be proffered voluntarily, not violently extorted. After all, if it should happen that even after inflicting all these torments, you still fail to wrest from the sufferer any self-incrimination regarding the crime of which he is accused, will you not then at least blush for shame and acknowledge how impious is your judicial procedure? Likewise, suppose an accused man is unable to endure such torments and so confesses to a crime he never committed. Upon whom, pray tell, will now devolve the full brunt of responsibility for such an enormity, if not upon him who coerced the accused into confessing such lies about himself? (However, let us not even call that a ‘confession’; rather, such a one utters with his mouth what is not in his heart!) . . . [The Pope then goes on to describe and recommend an alternative judicial procedure – presumably the one followed by that time in Rome.] Now, in the case of a free man under suspicion of a crime: if he has not already been found guilty of some previous offence, or has not been sentenced to be punished on the testimony of three witnesses, or if it is [otherwise] not possible to convict him, then the matter is finally resolved by placing before the accused the holy Gospel: once he swears upon it that he is innocent of the said crime, he is set free. This accords with what the Apostle to the gentiles had frequently witnessed: "an oath serves as a guarantee and puts an end to all argument" (Heb 6: 16).30
B2. Councils of Reims (1049) and Toulouse (1056). These 11th-century local church councils still refused to allow the death penalty for heresy.31
B3. Pope Alexander II (1061-1073). This pontiff sends a letter to the Archbishop of Narbonne confirming and insisting that the death penalty for heretics is ruled out by existing canonical and civil legislation. In dealing with this particular offence, "Leges tam ecclesiasticae quam saeculares effusionem humani sanguinis prohibent".32
B4. Pope Innocent IV, Bull Ad Exstirpanda (May 15, 1252). This fateful document introduced confession-extorting torture into tribunals of the Inquisition. It had already been reinstated in secular processes over the previous hundred years, during which Roman Law was being vigorously revived. Innocent’s Bull prescribes that captured heretics, being "murderers of souls as well as robbers of God’s sacraments and of the Christian faith, . . . are to be coerced – as are thieves and bandits – into confessing their errors and accusing others, although one must stop short of danger to life or limb".33
B5. Ecumenical Council of Vienne (1311-1312). Here the moral and legal acceptability of judicial torture is taken for granted by the conciliar Fathers. In this disciplinary (not doctrinal) canon they lay down some rather more stringent conditions for applying torture, in response to widespread complaints of abuses and excesses on the part of some inquisitors. After authorizing either the local inquisitor or the diocesan bishop to independently "cite, arrest and hold for safe-keeping" those accused (of heresy or other offences falling under ecclesiastical jurisdiction), the canon legislates that from now on both ‘signatures’, as it were, will normally be needed on a ‘check’ authorizing torture:
However, the bishop without the inquisitor or the inquisitor without the bishop or his representative . . . may not consign anyone to harsh and cruel imprisonment, which would be punishment rather than custody, or subject anyone to torture, . . . if they are able to co-operate within a period of eight days after they have sought each other’s cooperation.34
B6. Pope Leo X, Bull Exsurge Domine (June 15, 1520), censuring certain opinions of Martin Luther:
Condemned proposition #33: "Burning heretics is contrary to the will of the Spirit".35
B7. Pope Pius VII (19th century). In 1816 the pontiff who doggedly withstood Napoleon’s arrogance published a Bull forbidding any further use of torture in Catholic countries. (As late as 1851, however, almost in Pio Nono’s own back yard, the despotic Kingdom of Naples was still evading this ban.)
B8. Code of Canon Law, 1917. Finally, church legislation follows the now century-old practical disposition by formally renouncing the use, in ecclesiastical tribunals, of coercion to obtain a confession of guilt from an accused person. Indeed, the Church now had her own ‘Fifth Amendment’, stating explicitly – in contrast to St. Thomas’ position (cf. A5 above) – that before an ecclesiastical court no one is required to incriminate himself by confessing a delict he has committed (c. 1743, #1).36
B9. Vatican Council II, Gaudium et Spes (December 7, 1965).
#27 ("Respect for the Human Person"). Paragraph #3 reads as follows:
37All offenses against life itself, such as murder, genocide, abortion, euthanasia and wilful suicide; all violations of the integrity of the human person, such as mutilation, physical and mental torture, attempted psychological coercion (quaecumque humanae personae integritatem violant, ut mutilationes, tormenta corpori mentive inflicta, conatus ipsos animos coercendi); all offenses against human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the trafficking in women and children, degrading working conditions where people are treated as mere tools for profit rather than free and responsible persons: all these things and others of the same sort (haec omnia et alia huiusmodi) are truly disgraceful [or ‘shameful’, or ‘appalling’ – probra quidem sunt38], and while they poison human civilization, they debase the perpetrators more than the victims (magis eos inquinant qui sic se gerunt, quam eos qui iniuriam patiuntur) and utterly contradict the honor due to the Creator (Creatoris honori maxime contradicunt).
B10. Pope John Paul II, Address to the International Red Cross (Geneva, June 15, 1982).
4. . . . With respect to human rights, I will permit myself to return insistently to the subject of torture and other forms of inhumane treatment. Those governments adhering to the four Geneva Conventions have also committed themselves to the prohibition of such practices, and to allowing delegates of the Red Cross not only to visit detainees but to interview them without the presence of witnesses. It is my wish that, for this purpose too, your missions be accepted in all countries, with a view to eradicating this persistent blight on humanity (pour éloigner cette plaie vive de l´humanité).
5. In this service to man, Christians readily endorse the aims and practices of the Red Cross. . . . [In those who suffer] they see the figure of Christ himself, who has identified himself with prisoners, the sick, exiles, and those despoiled of everything. How many pages of the Gospels graphically depict this theme, beginning with the parable of the Good Samaritan! And as for torture, the Christian is confronted from infancy onward with the account of Christ’s Passion. The memory of Jesus – stripped, flogged, and derided right up until the sufferings of his final agony – should always make him resolve never to see analogous torments inflicted on any one of his brothers in humanity. Spontaneously, the disciple of Christ rejects every recourse to such methods, which nothing could justify, and by which the dignity of man is as much debased in the torturer as in his victim. . . .
7. . . . With you, I address an insistent appeal for the sincere and scrupulous observance of the humanitarian laws contained in these Conventions, and even for them to be supplemented, if need be, by international instruments against inhumane treatment, and in particular, torture. These could provide serious guarantees for the physical and psychological safety of detainees, and for the respect which is due to them.39
B11. Catechism of the Catholic Church (1992), on "Respect for bodily integrity".
#2297. Torture, which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred, is contrary to respect for the human person and for human dignity.
#2298. In times past, cruel practices were commonly used by legitimate governments to maintain law and order, often without protest from the Pastors of the Church, who themselves adopted in their own tribunals the prescriptions of Roman law concerning torture. Distressing40 as these facts are, the Church always taught the duty of clemency and mercy. She forbade clerics to shed blood. In recent times it has become evident that these cruel practices are [esse] neither necessary for public order, nor in conformity with the legitimate rights of the human person. On the contrary, these practices lead [ducunt]41 to ones even more degrading. It is necessary to work for their abolition. We must pray for the victims and their tormentors.
B12. Pope John Paul II, Encyclical Veritatis Splendor (August 6, 1993).
#80. Now, reason testifies that there are some human acts which are seen to be "non-ordainable" to God, since they are radically incompatible with the good of the person (omnino dissident a bono personae) created in His image. These are acts which in the Church’s moral tradition are called "intrinsically evil" (intrinsece malum). They bear that character always and per se, that is, because of their very object, independently of the circumstances and of the purpose of the one committing the act. . . . Vatican Council II, in treating of the respect due to the human person (de obsequio quod humanae debetur personae), mentions numerous examples of such acts. [The Pope then cites in full GS #27, 3, including its denunciation of torture: cf. B9 above].
B13. Pope John Paul II, Apostolic Letter Tertio Millennio Adveniente (November 10, 1994). As the Jubilee year for the new millennium approaches, the Pontiff calls for "a spirit of repentance" for the historical acquiescence of "sons and daughters of the Church" in "intolerance and even the use of violence in the service of truth", especially during the second millennium now ending. He goes on (#35):
It is very true that an equitable historical judgment must include an attentive study of the cultural conditions of that time. Under their powerful influence, many, perhaps, considered in all good faith that a sincere witness to the truth required the simultaneous suppression, or at least the isolation, of contrary opinions (sinceram veritatis testificationem simul iubere alienas opiniones extingui vel saltem secludi42). Many causes often converged to sow the seeds of that intolerance and immoderate zeal from which only a relatively few great and truly free minds, deeply penetrated by God, were able to detach themselves. Nevertheless, recognizing these mitigating circumstances does not dispense the Church from the duty of profoundly lamenting the weakness of so many of her own sons who disfigured her countenance, preventing it from fully reflecting the image of the crucified Lord who was the supreme witness to patient love and humble meekness. From these painful episodes of the past a lesson for the future emerges, namely, that every Christian should be led to keep firmly in mind this golden principle enunciated by the Council: "Truth does not43 impose itself except by virtue of its own truth, which wins over the mind with both gentleness and power" (Dignitatis Humanae, #1).
C. Theological Evaluation of the Foregoing Citations
C1. First Millennium (A1, A2, A3, A4, A5, A6 and B1).
Christian witness on this topic over a thousand-year period is not only sparse, but is also, on the whole, disappointing. What we see is an instance of the familiar scenario in which a pendulum drawn too far in one direction swings rapidly to the opposite extreme when suddenly released. While Tertullian’s unqualified repudiation of torture obviously resonates with modern Christian sympathies and sensibilties, his simultaneous insistence that Christians should not even be involved in "imprisoning" malefactors, or suing others in secular courts, renders his testimony of very limited value in the attempt to establish an authentic, workable Christian social doctrine regarding the control of lawlessness in a society attempting to be guided by Gospel principles. Thus it was that in the fourth century, when Christianity, contrary to all early patristic expectations, found itself not only emancipated, but catapulted, as it were, into social and political dominance as the new Roman state religion, the total inadequacy of the world-renouncing idealism of the pre-emancipation Church became immediately obvious and was rapidly replaced by a largely uncritical acceptance of the already-existing pagan imperial law. No doubt this acceptance was facilitated in part by the authority of the only part of Sacred Scripture that explicitly offered precedents for maintaining social order: the Old Testament, with its intolerance of pagan influences within Israel and its frequently harsh penalties for malefactors.
As we have noted (cf. A2 above), the process of mitigating the most brutal laws and customs of pagan Roman society began with Constantine himself, and continued in succeeding centuries. But it was slow process, and the legal use of interrogatory torture, unfortunately, was among those practices which continued to be accepted by civil and ecclesial authorities alike, in spite of its absence from even Old Testament penal procedures. As we have seen, even St. Augustine, whose every word carried so much prestige in the subsequent centuries of Christendom, gives the practice his reluctant approval. The great bishop and doctor seems to regard the various ways in which the innocent can suffer and even die, under current Roman legal procedures involving torture, as a kind of deplorable but inevitable "collateral damage", in the attempt (sometimes unsuccessful withal!) to avoid the worse evils of either sentencing innocent men to death or endangering public order by acquitting wicked criminals. It is, for him, rather like the unavoidable suffering and death of the innocent that always occurs in even a just war (which in fact he goes on to discuss in the next section of Book 19). Augustine sees this tragic situation arising from the clash of two grim facts of human life after the Fall of man: on the one hand, the need to punish crime justly for the protection of society, and on the other, the frequent great difficulty, or even impossibility, of ascertaining who is guilty and who is innocent.
By the time Augustine wrote The City of God (between 413 and 427), Catholic Christianity had been emancipated for over a century and had been the official and dominant religion of the Empire for nearly half of that period. In trying to discern what, if anything, the Church’s magisterium said about torture in the patristic era, we must add to Augustine’s explicit shoulder-shrugging resignation the silence of other successors of the Apostles before and after him, including, it seems, all the Bishops of Rome for as long as the abominable practice remained legal. It seems that as long as the old Western Empire lasted, many of its basic legal procedures and institutions – including slavery, of course, as well as judicial torture – were generally accepted without protest as facts of life and/or necessary evils by most of the Church’s pastors and faithful. (In fairness, it must also be remembered that Roman Law was really the only law of which Augustine and millions of his Mediterranean contemporaries had any knowledge. In that cultural context, Roman ways were seen as virtually synonymous with civilized living itself.)
The silver lining to this cloud, however, is that at least there is no record of Tertullian, or anyone else in the patristic era, ever being censured by any Pope or Council for expressing a radical repudiation of torture. Since the presence or absence of ecclesiastical censures against a given thesis of faith and morals – especially censures emanating from the See of Peter – is a fairly good litmus test as to what is currently being taught as church doctrine on that subject, we can at least say with some confidence that the Church’s magisterium during the patristic era never required anyone to hold, as a point of Catholic doctrine (not even ‘authentic’ or non-infallible doctrine) that existing Roman Law in regard to torture was in accord with the Law of Christ. In the earliest centuries, Tertullian’s clear repudiation of this practice was probably quite widely shared among Catholic Christians; and the later Augustinian thesis – a reluctant assent to its moral acceptability – seems to have been located, doctrinally speaking, at the still lower level which later theology would come to classify as sententia communis.
After the barbarian invasions, the fall of the old Western empire, and the legal reforms of Justinian, judicial torture was phased out along with old Roman Law. The northern European pagans had not made much use of such procedures, but frequently resorted to other irrational and violent methods of crime ‘detection’ such as trial by ordeal or combat. Christian influences eventually prevailed against these superstitious barbarities as well, so that at last Pope St. Nicholas I in the 9th century could teach the Bulgarians the far more humane and biblically-based judicial procedure with which he is familiar: one based on the reputation of the accused, the testimony of witnesses and the swearing of an oath on the Gospel (cf. B1 above). The principle that one is presumed innocent until proved guilty seems to be implicit or at least strongly hinted at in this procedure, whereas this concept was not part of Roman Law. Indeed, the latter’s rationale for the use of torture was precisely that once a couple of witnesses of good reputation testified against you, you were under a presumption of guilt (probatio semiplena) which often could be overturned only by your successfully running the terrible gauntlet of torture. In short, that torture itself was by no means considered to be an instance of harming one who is still presumed innocent.44
In any case, Pope St. Nicholas’ forthright condemnation of confession-extracting torture as contrary to divine law, as well as to the human law which was evidently well-established in Rome by the time he wrote, certainly comes as a breath of fresh air after the long patristic centuries of ecclesiastical fence-sitting and/or conformity toward such cruelty. While certainly not an ex cathedra definition, Nicholas’ assertion is manifestly more than a mere expression of opinion. So we can conclude that by the last centuries of the first millennium, the authentic (though not infallibly proposed) magisterial teaching of the Church excludes torture – at least for the aforesaid purpose – as morally unacceptable.
C2. Second Millennium prior to Vatican Council II (A7, A8, A9, A10, A11, A12, B2, B3, B4, B5, B6, B7, B8).
The Church’s position regarding torture appears to have continued along the lines laid down (or rather, confirmed) by Pope Nicholas for a couple of centuries into the next millennium until two new factors coincided in the late 12th century to bring about significant change. These were the ongoing revival of Roman Law (stimulated by the rediscovery of many classical documents in the time of the Crusades) and the rise of a new and particularly virulent, anti-social heresy in southern France: that of the Albigensians. The ancient pagan Nordic practice of burning to death those convicted of treason against the tribe or state was now revived by European civil authorities to punish heretics, seen now as traitors to Christian civilization. And in 1252 Pope Innocent IV introduced confession-extracting torture (cf. B4) into the procedures of the Inquisition, which had recently been established by his predecessor Gregory IX. After this, the very practice condemned by Pope St. Nicholas I as contrary to divine law (cf. B1) was to enjoy the approval of popes, bishops and theologians for half a millennium, and was even endorsed by an ecumenical council (cf. B5).
What was the doctrinal status of this deplorable regression to ancient cruelty? With the exception of B6 above, to which we shall return below, the relevant papal and conciliar decrees were all clearly disciplinary, rather than doctrinal, in character. That fact, however, does not in itself guarantee that no doctrinal position was being assumed by the Church in regard to the practice in question. For approved theologians ever since Bellarmine, Melchior Cano, and Suarez in the 17th century have argued that Christ’s promise of the Holy Spirit’s unfailing assistance to his Church will guarantee that at least some categories of ecclesiastical legislation can never be contrary to faith or morals, or otherwise inflict serious harm on the Church and souls. This was confirmed by the Council of Trent when it anathematized the contention of Calvinists and other Puritans that "the ceremonies, vestments and outward signs" prescribed by liturgical law for the celebration of Mass are "incitements to impiety".45 Likewise, Pius VI in 1794 condemned the Jansenist teaching that the Church had in fact passed, or ever could pass, legislation "which is not only useless and burdensome for Christian liberty to endure, but which is dangerous and harmful and leading to superstition and materialism"46. However, the consensus of approved theologians interpreting such magisterial interventions seems to be that by no means all ecclesiastical legislation enjoys such a guarantee, but only that which is "universal", not just in the geographical sense of applying throughout the Catholic world, but in the anthropological sense of applying to the faithful as a whole. In other words, we can be sure the Holy Spirit is never going to allow Peter’s Successor to command, or even authorize, the Church as a whole – the great bulk of the faithful round the world – to commit sin, or to do something that will cause grave harm. For that would be contrary to the ’note’ of sanctity ("One, Holy, Catholic and Apostolic") which is a revealed attribute of the Church.
Fortunately, the re-introduction of confession-extracting torture does not seem to raise any insuperable apologetic problems in this regard. The 1252 document, and similar subsequent legislative measures promulgated by medieval popes, were not even geographically, and much less anthropologically, universal. Pope Innocent’s original Bull applied only to Italy,47 and though similar measures were subsequently adopted by the Inquisition in other countries as well, they were never extended to every nation in Christendom. But even if they had been, and even supposing that mortal sin against the dignity and rights of the human person was committed (at least objectively) by all those who prescribed and applied such torture, the Church certainly never required the great bulk of the faithful to commit any such sin. Only that minuscule percentage of Catholics was implicated whose legal duty it was to order and/or carry out these papal or conciliar instructions: princes, inquisitors, bishops, magistrates, and professional torturers. The concrete examples given by approved theologians of disciplinary laws which do enjoy this kind of ‘infallible’ nihil obstat always seem to be in the realm of liturgical, sacramental and ascetical precepts, whose very purpose is to sanctify. These of course do indeed directly involve the great bulk of the ordinary faithful. (Classic examples would be the famous ‘five precepts of the Church’.48
Another relevant point is that already mentioned with regard to Tertullian in the patristic period – the apparent absence of Church censures. At the same period when Galileo notoriously came under fire from the Vatican, there seems to be no record of any similar Roman displeasure directed against Louis Vives and other pioneer abolitionists who in the 16th and 17th centuries began denouncing confession-extracting torture as un-Christian (cf. A9 above). (Denzinger certainly contains nothing of that sort.)
It seems reasonable to conclude, therefore, that also during those 2nd-millennium centuries when torture for the aforesaid purpose was approved, this approval itself was only at the level of ‘sententia communis theologorum’. That is, the Apostolic See appears to have considered it an ethical thesis enjoying solid and wide enough backing to be at least probabilioris, and therefore safe enough to be followed in practice ("If-it-was-good-enough-for-Augustine-it’s-good-enough-for- us"), but from which ‘idealistic’ dissent – which, after all, went right back to Tertullian – could still be permitted.49
Unfortunately, the same indulgence was not always accorded by the See of Peter to those who opposed the use of torture for another purpose – that of putting heretics to death. Pope Leo X’s condemnation of the proposition, "Burning heretics is contrary to the will of the Spirit" (cf. B6 above) is clearly a doctrinal censure. However, just what kind of doctrinal status the Pope intended to give this condemnation is not clear. No precise theological note is attached to this proposition. Like any other among the 41 censured in this Bull, it could be assigned an ‘iniquity-level’ as grave as "heretical", as mild as "offensive to pious ears" or "seductive of simple minds", or anywhere in between ("scandalous" or "false"). For at the end of the document, the Pope simply makes a general declaration that all of the preceding propositions merit one or more of these censures. However, he adds that in any case they are all in one way or another "opposed to Catholic truth" (veritati catholicae obviantes), and so "condemn[s]", "reprobate[s]", and "absolutely reject[s]" them all.50
Now, a pope’s condemnation of a proposition that may – for all he has told us – be no worse than "scandalous", "offensive to pious ears", or "seductive of simple minds", can certainly not qualify as an ex cathedra definition. For all those three lesser censures clearly involve the kind of judgment that might turn out to be reformable; whereas infallible definitions, of course, are by their very nature irreformable. (Assuming it is not certainly false, a given proposition that is nevertheless likely to "scandalize", "offend", or "seduce" the faithful under certain cultural/historical circumstances may not necessarily be so noxious under different circumstances.). Therefore, especially in the light of the fact that the burning of heretics (or, indeed, their execution by any other method) formed absolutely no part of Catholic practice or tradition for the first thousand years of church history, and in fact, was explicitly repudiated by councils and popes as recently as the 11th century (cf. B2 and B3 above), I do not believe it is incumbent on Catholic apologists in the third millennium to go to great lengths trying to defend this non-infallible decision of Leo X.51
One can only speculate as to what, if anything, the magisterium might have said had Luther chosen to word his opposition to heretic-burning rather more circumspectly: for instance, by saying that such extremely harsh treatment of even the worst sinners is, to say the least, very difficult to reconcile with the spirit of forbearance and mercy enjoined in the New Law of Christ, who explicitly rebuked the disciples’ zeal in wishing to have unbelievers burned to death;52 and that such punishment should therefore in any case be abolished by Christian governments. It is at least consoling for the modern Catholic to be able to note that the magisterium never did condemn in any way this latter and more nuanced position, which, indeed, was that adopted in effect (however belatedly!) by the See of Peter, when Pope Pius VII finally forbade torture of any kind in Catholic countries.53 (By that time, of course, no one had in any case been legally burnt at the stake in a Catholic country for well over a century.)
We are now in a position to see why an authority such as Palazzini, as recently as 1954, presents the Church’s magisterial teaching regarding torture as being by no means clear-cut (cf. A12). The fact is that in the course of nearly two millennia, no infallible teaching either for or against torture (for any purpose whatever) had ever been laid down by the Church in either her ordinary or extraordinary magisterium. What we have seen is a disappointing magisterial silence during the patristic period, followed by a merely authentic magisterial teaching (cf. B1) against confession-extracting torture which prevailed in the late first and early second millennia. But this was then obscured, in theory and in brutal practice, for another half-millennium by an opposing sententia communis theologorum which was endorsed up till the 18th century by even saints and Doctors of the Church. Meanwhile, the per se liceity of severe pain-infliction as punishment for known offenders was constantly and universally upheld without the perceived need for specific magisterial interventions. This position was based on explicit biblical teaching, and an a fortiori theological argument flowing from the universally acknowledged liceity of capital punishment. The specific case of death by torture for certain convicted offenders was quite alien to first-millennium Christian tradition and practice, but its liceity also then became sententia communis in the medieval period. Indeed, opposition to this dreadful practice was eventually censured by the 16th-century papal magisterium – though, as we have seen, in an ill-defined way that left rather unclear both the ‘matter’ (the precise nature of what was being insisted upon) and the ‘form’ (the degree of force of this insistence) of the censure.
C3. Since Vatican Council II (A13, B9, B10, B11, B12 and B13).
The reference to tormenta corpori mentive inflicta is included in Gaudium et Spes, #27 as part of a long list of actions and situations contrary to human dignity which are then globally denounced as probra – things that are "shameful", "disgraceful", "vile", "execrable", or "scandalous" (cf. B9 above). The textual history of this passage sheds little further light on the precise import of this denunciation of torture. This writer has been unable to find any record in the Acta of any discussion among the conciliar Fathers of this point, nor any explanations of it given by the relator for the schema. It seems to have been quite uncontroversial, with all the Fathers apparently just taking it for granted that torture is an abomination which deserves the Church’s condemnation, along with the other listed offences against the human person.
However, there were some textual changes. In the initial schema presented to the fathers at the third (1964) session of the Council, the words tortura physica et psychica were used54, but the difference between this and the finally approved terminology does not seem very significant. Instead of the word probra, however, the original schema (which also included a condemnation of "campus ‘concentrationis’") globally described the anti-human calamities it had just listed in even stronger language, as "monstrous crimes perpetrated in our century" (immania nostro saeculo crimina perpetrata)55. The subsequent replacement of crimina by the more general probra (a change that was lost on the Flannery translators, who continue to use "crimes" and "criminal") was possibly due to a recognition that such indignities as "subhuman living conditions" and "degrading working conditions" might not always qualify strictly as "crimes", in the sense of voluntary violations of some divine or human law. In any case, the outcome is that all of the said indignities, including torture, are globally described by the Council as evils less specific than "crimes".
It also seems important to remember the pastoral character of the council in general, and of this "Pastoral Constitution" in particular. The text makes no attempt to give a precise definition of what is meant by such tormenta, or to distinguish (as the CCC subsequently does) between the different purposes for which torture might be inflicted. The very title of the document, specifying that it intends to speak to the "contemporary" or "modern" world (. . . in mundo huius temporis), invites a hermeneutic that limits the Council’s condemnation to those kinds of torture which have actually been going on in the 20th century – prescinding, that is, from more theoretical, less pastorally urgent, questions such as the status of corporal punishments in the time of Moses, possible differences between the Old and New Laws, whether torture is per se or only per accidens immoral, and what degree of ill-treatment of the human person has to be reached before it can fairly be classified as "torture". Now, if we adopt a ‘pastoral’ hermeneutic of this sort, a new and important factor enters into the equation for purposes of moral evaluation – that of the (human) legality or illegality of torture. A common factor in the kinds of torture we have considered so far in this paper is that they were all at least in conformity with established legal procedures in force at different times and places in history. But what are we to say of tortures that had to be judged abusive even according to existing legal norms, because they were disproportionately cruel, or inflicted by unauthorized persons, or without due process, or inflicted on the innocent, or from sadistic motivations? If legally controlled torture is inhumane enough, then surely torture uncontrolled by any legal norms, and so left up to the clandestine, arbitrary and tyrannical whims of criminals, dictators and frequently sadistic secret police agents, is far worse! But this, of course, is precisely the kind of torture that Vatican Council II was facing as a contemporary blight on humanity, and which we are still facing today in the new millennium. By the 1960s probably not a single country was left on earth whose penal code still openly and shamelessly provided for torture, with corresponding legislation regulating its application. At the same time, however, 20th-century Communist and Nazi regimes, along with many other petty dictatorships, especially in Latin America, Asia and Africa – not to mention any number of proscribed terrorist and criminal organizations – had been clandestinely refining, and ruthlessly applying, any number of new and horrendous torture techniques.
That, I suggest, is essentially the kind of torture contemplated and condemned by Vatican II, and then subsequently branded by John Paul II, as one example of "intrinsically evil" practices among others, when he quotes the Council word for word in Veritatis Splendor #80 (cf. B12 above). I do not think we can conclude much more than this about the morality of pain infliction from these two magisterial texts alone. For that would be trying to make them provide answers to questions they did not set out to address.
Let me elaborate on this point. The Council itself, as we have pointed out, is contemplating, and roundly condemning, the currently existing phenomenon of torture, which happens to include this gravely aggravating factor of uncontrolled, clandestine arbitrariness. But also in the case of John Paul II’s encyclical, the Pope’s primary purpose in #80 is not to pass a considered judgment on torture as such – a question of ‘special’ moral theology. Rather, he is concerned to assert a much more general truth pertaining to ‘fundamental’ moral theology, namely, the falsity of recent ‘proportionalist’ theories, according to which practically any specific kind of human action could be justified under certain conditions. What the Pope wants to insist on here, in opposition to such theories, is simply that there do really exist classes of actions which are intrinsically morally evil, and which, therefore, can never be justified under any circumstances. And Gaudium et Spes #27 simply happens to furnish the Pope with a convenient, ready-made set of examples to help him illustrate his point. But even here, while the first examples given by Vatican II (murder, genocide, abortion, etc.) certainly serve the Pope’s purpose, not all of those further down the list do so – at least, not without further definition, amplification or clarification. "Subhuman living conditions", for instance, cannot possibly be "intrinsically evil" in the classical sense the Pope gives to this term in the first lines of #80, because they do not even constitute a human act! In practice, they are nearly always due to a combination of natural, economic, and political factors, together with voluntary human actions or omissions that may very well include avaricious malfeasance, or at least gravely culpable imprudence or negligence, on the part of rich and powerful exploiters of the poor. But such "conditions" are never due exclusively to – and much less do they consist of – one simple class of human act whose very object is inherently immoral. Likewise with "deportations". While these (unlike "conditions") are certainly human acts, they would need to be defined much more precisely and narrowly before they could possibly qualify as "intrinsically evil". For it is surely evident that John Paul was not intending to condemn the work of those immigration officials in practically all countries who carry out the legitimate role of controlling borders and "deporting" those foreigners whose entry may justly be prohibited by law. I believe we may conclude from all this that a hasty and strictly literal interpretation of what this passage says about torture would not accurately reflect the mind and intention of John Paul II. That is, VS #80 cannot legitimately be read as containing a formal judgment on the part of the Pope to the effect that the voluntary infliction of severe pain is, as such, "intrinsically evil".
A better key to the true thinking of John Paul II on torture considered specifically and ex professo (i.e., not just as one example amongst others in a list of widely varying forms of contemporary human suffering) is provided by his 1982 allocution at the world headquarters of the Red Cross in Geneva (see B10 above). Here the Pontiff does not use the natural-law language of "intrinsically" or per se evil actions. In articles 4 and 7 of the discourse he appeals to, and warmly endorses, the modern human positive laws outlawing torture (international conventions and protocols), while in the key article 5 he appeals to the Law of Christ: that is, specifically Christian ethical norms based on the teaching and example of Jesus as revealed in the Gospels. It is true that "human dignity", to which the Pope also appeals in this passage, is an attribute of human nature as such. However, given the inevitable element of subjectivity entering into decisions as to just how severely or leniently malefactors should treated, it is not always possible to say, with respect to a given specific penal practice, that it either simply is, or simply is not, compatible with this natural dignity. Some such practices can be given such a clear-cut, universal ethical qualification, whether positive or negative. But there are other, more ‘borderline’, methods employed in combating crime which it seems inappropriate to try to evaluate simplistically in such absolute, black-and-white terms. These are better judged in terms of being "more" or "less" compatible with human dignity. The Catechism of the Catholic Church endorses this nuanced approach with respect to capital punishment. While not excluding it as intrinsically evil (that is, as absolutely incompatible with human dignity), the Catechism takes the position that it should now rarely if ever be used, since public order can be maintained with other penalties that are "more in conformity to the dignity of the human person".56 With this hermeneutical criterion mind, it is easier to see how those who wish to apply the merciful Law of Christ to human social and legal questions will take the prudential (not strictly doctrinal) decision that certain of these measures that are "less" rather than "more" compatible with human dignity are under contemporary circumstances unjustifiable in practice and so should be simply proscribed and abolished.
Pope John Paul, in his discourse to the Red Cross, after raising the question of torture, thus concludes, "Spontaneously, the disciple of Christ rejects every recourse to such methods, which nothing could justify, and by which the dignity of man is as much debased in the torturer as in his victim" (emphasis added). In the first part of this study, devoted to the biblical witness regarding direct pain infliction, we saw that Jesus neither condemns as "intrinsically evil" the Old Testament’s norms prescribing extremely painful punishments for malefactors, nor lays down explicit, concrete norms to replace those old ones. We concluded, however, that our Lord certainly does leave us with a very different ‘ethos’, the practical implications of which in the social order could be summed up in the proposition that in a society governed by Christian principles, even malefactors are to be treated with as much humanity and clemency as is compatible with the effective maintenance of a just public order in any given set of social circumstances. Or – what amounts to the same thing in practice – that mercy should temper strict justice, subject to the same limiting criterion. Now, I would suggest that John Paul II’s teaching regarding torture, as expressed in his Red Cross allocution, can appropriately be interpreted within this hermeneutical framework.
Questions could also be asked about the precise import and magisterial weight of the Catechism’s brief statements on torture (cf. B10 above). It seems noteworthy that #2297 specifically repudiates torture for several specific purposes, among which is conspicuously absent that very purpose which has been raised again recently in some Western circles as possibly being a legitimate one, especially after September 11, 2001. That is, the use of physical violence, not to extract confessions of guilt from a suspect (the old Roman Law model), but to extract vital information from, say, a captured and self-confessed Al Qaeda operative whose secret plans may be the required key for saving hundreds or even thousands of innocent lives from his next projected terrorist attack. True, any exception, even in such extreme circumstances, to the rule against torture would conflict with the absolute position expressed by Pope John Paul at Geneva ("Nothing could justify . . . "). But this fact does not necessarily settle the theological question as to what counts as the authentic magisterial teaching. Firstly, because the Catechism (1992) is subsequent to the 1982 Geneva address and so could possibly represent a nuancing or revision of the Pope’s own position (on a particularly difficult subject concerning which, after all, mutually contradictory positions have been espoused in other non-infallible papal decisions over the centuries). Secondly, because the Catechism, promulgated for the universal Church by an Apostolic Constitution, enjoys a higher level of magisterial authority than a simple speech, addressed to a limited audience, that was never even published in the Acta Apostolicae Sedis. And thirdly, because a comparison of the Catechism, ##2297, with the 1984 United Nations Convention against torture suggests strongly that the drafters of the Catechism took into account this authoritative new international ruling on the subject (which would be a priori very probable in any case), and, while generally following the Convention’s proscriptions, deliberately decided not to do so on this particular point. The U.N. document rules out the intentional infliction of "severe pain or suffering" on any person "for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, . . .".57 Now, #2297 of the Catechism is quite similar, ruling out the use of "violence" in order to obtain confessions, to punish, and to intimidate. However, this very similarity makes its failure to condemn torture for obtaining "information" look like a deliberate decision on the part of church authorities, rather than a mere oversight or coincidence.
Clearly, the Church’s magisterium in regard to the morality of torture and corporal punishment is still in the process of development, with a number of questions remaining unresolved so far, and needing further attention from theologians, philosophers, criminologists and jurists. Nevertheless, I shall conclude by offering a few tentative theological conclusions, based on my reading of Scripture, Tradition, and the rather confused and even historically inconsistent witness of the Church’s (non-infallible) magisterium:
First, three practices do seem to merit the description ‘intrinsically unjust’ according to authentic Catholic doctrine, on the combined basis of the three aforesaid pillars of authority in matters of faith and morals:
(a) Torture for extracting confessions of a crime of which one is accused (as practiced, for example, under Roman Law). This practice, of which there is not a trace of approval in Scripture, even under the harsh Old Testament law, seems even more repugnant to the Law of Christ, even though it was accepted as sententia communis (and even put into practice) by Church authorities for many centuries during the patristic, medieval and early modern times. Explicit Christian opposition to the practice dates back to Tertullian, and the reasons for its immorality were well summed up by Pope St. Nicholas I (cf. B1 above). This authentic, but so often obscured, Christian judgment, is now clearly expressed again the Catechism in #2297.
(b) Torture carried out on those not even accused formally of any crime or offence, simply in order "to frighten opponents, or satisfy hatred" – also specified in the Catechism, #2297.
(c) Torture, or indeed, mutilation or any other kind of physical or psychological violence against the person, carried out not by public authority in accordance with a norm of law, but by those acting arbitrarily and clandestinely, without any legal authority (even if they should happen to be heads of state, secret police, etc.). For what we have here is basically nothing other than grave criminal aggression directly opposed to the Fifth Commandment, even if the criminal happens to be a tyrannical and arbitrary dictator contemptuous of the rule of law. The vast majority all acts of torture occurring in the modern world, and thus coming under the particular scrutiny of Vatican II’s pastoral teaching in Gaudium et Spes against contemporary offences against the human person, would almost certainly fall into this category.
Secondly, I do not think that the direct infliction of severe physical pain, as a punishment for duly convicted delinquents carried out by public authority in accord with a norm of law, can be categorized as intrinsically evil. Such a thesis would seem to be incompatible with the divine inspiration of the Old Testament, which clearly prescribed such penalties for numerous offences. It would also amount in practice to the thesis that imprisonment is the only penalty that can ever justly be applied to even the worst criminals. But this would clearly be impractical, and indeed, inapplicable, in primitive nomadic societies (like the Israelites during the Exodus and many others) wherein nobody has any permanent dwelling place. Under such social and physical circumstances, much less is there a possibility of prisons for delinquents.
However, as we have argued, not everything that escapes the extreme moral censure of being intrinsically evil or unjust can without further ado be pronounced compatible with the New Law of Christ. Jesus has left us no specific legal instructions for dealing with crime in a society based on Gospel principles. But as we have seen in Part I of this study, the Lord has certainly left us, by precept and personal example, a new approach or outlook which emphasises, much more than the Old Law did, the importance of mercy and forbearance in the treatment of sinners. We could reasonably try to formulate a general legal principle, in application of this Gospel teaching, to the effect that the punishment of even the worst criminals should not detract from their dignity as human persons to a greater extent than should really be needed in order to maintain public order and protect innocent citizens. Also, the contemporary magisterium (GS #27) has emphasized also the harm – in this case spiritual, moral and psychological – that the infliction of grave physical pain on another human being does to the tormentor himself. In contrast to the profession of being an ordinary prison warder (and probably even the role of an executioner who presses a lever to administer a lethal injection or, in the case of hanging, to open a trapdoor), the role of torturer not only brutalizes and renders increasingly insensitive to terrible human suffering the agent himself; even worse, that role or function will tend to attract in practice, as the only persons in society willing to carry out such a function, those sorry types of individuals who already have at least latent sadistic tendencies, and so will actually enjoy their grisly task. But precisely in that situation, another type of grave sin (or at least the near occasion thereof) will be involved: that of cruelly delighting in the infliction of intense pain, often accompanied by perverse sexual satisfaction.
For all these reasons, it seems that the exclusion of torture (flogging, etc.) as legal punishment can be seen as an appropriate practical implication of the Law of Christ, especially under modern circumstances, even though such punishment is not intrinsically unjust. I would suggest that the Catechism’s censure of torture (and mutilation) as "punishment of the guilty" (#2297), and Pope John Paul II’s allocution against torture at Geneva, be understood in that light.
Thirdly, there remains the question – nowadays a very practical and much-discussed one – of torture inflicted not for any of the above purposes, but for extracting life-saving information from, say, a captured terrorist known to be participating in an attack that may take thousands of lives (the now-famous ‘ticking bomb’ scenario). As we have noted above, this possible use of torture is not mentioned in the Catechism. If, as I have argued, the infliction of severe pain is not intrinsically evil, its use in that type of scenario would not seem to be excluded by the arguments and authorities we have considered so far. (John Paul II’s statement about the "intrinsic evil" of a list of ugly things including torture in VS #80 does not seem to me decisive, even at the level of authentic, non-infallible, magisterium, for the reasons I have already given in commenting above on that text.) My understanding would be that, given the present status questionis, the moral legitimacy of torture under the aforesaid desperate circumstances, while certainly not affirmed by the magisterium, remains open at present to legitimate discussion by Catholic theologians.
After the above article was published, Pope Benedict XVI, in a speech of 6 September 2007 on Catholic prisons ministry, personally endorsed a statement against torture found in the 2005 Vatican Compendium of the Church's Social Teaching. Citing article 404 of this document, the Holy Father said, "In this regard, I reiterate that the prohibition against torture 'cannot be contravened under any circumstances'". (See www.vatican.va/holy_father/benedict_xvi/speeches/2007/september/documents/hf_ben-xvi_spe_20070906_pastorale-carceraria_en.html )
In the above article I have already cited and discussed, in my section A13 and endnote 27, this article 404 of the Compendium, which is a publication of the Pontifical Commission for Justice and Peace. I have pointed out that this and other statements authored by the Commission itself - as distinct from the statements of Popes and Councils which it cites abundantly throughout the Compendium - does not possess magisterial authority; for the various Vatican commissions, unlike the Congregation for the Doctrine of the Faith, are not in themselves arms of the Church's magisterium (teaching authority). However, now that Pope Benedict himself has personally reiterated this particular statement of the Compendium, I wish to state that I accept the Holy Father's judgement on this matter, and so no longer hold that Catholics can ever legitimately defend the use of torture - not even in extreme circumstances to gain potentially life-saving information from known terrorists. Accordingly, the last sentence of the above article, regarding "the present status quaestionis" on torture, should now be taken as withdrawn.
1. De Corona, 11, emphasis added.
2. De Idololatria, 17, emphasis added.
3. Warren H. Carroll, The Founding of Christendom (Front Royal, VA: Christendom College Press, 1985), p. 540.
4. The City of God, 19: 6 ("Of the error of human judgments when the truth is hidden").
5. Clyde Pharr, ed., The Theodosian Code (Princeton University Press, 1952).
6. Cf. Theodosian Code, 16: 2: 2.
7. Cf. Ibid., 1: 34: 2.
8. Ibid., 1: 32: 3.
9. Ibid., 2: 1: 1 (dating from 349).
10. Cf. Pharr, op. cit., p. 641 (Index, s.v. "torture").
11. Theodosian Code, op. cit., 11: 39: 13.
12. Cf.Ibid., 16: 6: 3-4; 11: 39: 11.
13. Cf. Ibid., 16: 6: 3.
14.Cf. Ibid., 16: 7: 2.
15. Cf. Ibid., 16: 2: 4.
16. Cf. Ibid., 16: 2: 2.
17. Cf. Ibid., 9: 7: 6
18. Cf. Ibid., 16: 8: 1, 7.
19. The (Latin) text used here is that found in El Digesto del Emperador Justiniano, vol. III (Madrid: Ramón Vicente, 1874).
20. Digest, 48: 18, article 23 (my translation).
21. Encyclopedia Brittanica, (1967 edn.), vol. 22, p.100, s.v. "Torture".
22. ST, IIa IIae, 10, 8c.
23. ST, IIa IIae, 69, 2c.
24. Cf. Enciclopedia Universal Ilustrada, vol. 62 (Madrid, 1928), p. 1001.
25. Cf. P. Fiorelli, s.v. "Tortura", in Enciclopedia Cattolica (Vatican City: 1954), vol. XII, col. 342. Fiorelli also here mentions an early Protestant work against torture: J. Graefe, Tribunal Reformatum .
26. Cf. Theologia Moralis (4: 3: 3). It should be noted that St. Alphonsus’ renowned work is largely a commentary upon an already existing book on moral theology by H. Busenbaum. In this case, Alphonsus is simply reproducing without comment the text of Busenbaum’s treatment of torture, evidently manifesting thereby his own acceptance of its content at this point. As in the case of Aquinas’ commentaries on the "Sentences" of Peter Lombard, the commentary became much more famous and authoritative than the work commented upon.
27. Enciclopedia Cattolica (Vatican City: 1954), vol. XII, s.v. "Tortura: aspetto morale", col. 343 (my translation).
28. Ibid., col. 342 (my translation).
29. Compendium of the Social Doctrine of the Church (Vatican City: Pontifical Commission for Justice and Peace, 2005), article 404. This compendium is an approved Vatican publication, but the Commission which produced it is not an organ of the Church's magisterium (teaching authority). The binding authority of its contents is therefore limited to that of the magisterial sources it cites abundantly on every page.
30. DS 648, my translation. (This text is not found in earlier editions of Denzinger.)
31. Cf. Mansi 19: 737, 849.
32. Mansi 19: 980
33. ". . . homicidas animarum, et fures sacramentorum Dei, et fidei christianae . . . cogere citra membri diminutionem et mortis periculum . . . errores suos fateri et accusare alios . . . , sicut coguntur fures et latrones". Bull Ad Extirpanda (Bullarium Romanorum Pontificum, vol. 3 [Turin: Franco, Fory & Dalmazzo, 1858], Lex 25, p. 556a.)
34. This is part of Canon 13 of the Council’s disciplinary decisions. Cf. H. J. Schroeder, O.P., Disciplinary Decrees of the General Councils (London: Herder, 1937), p. 398.
35. "Haereticos comburi est contra voluntatem Spiritus" (D 773 = DS 1483).
36. I say here the Church "had" her own ‘Fifth Amendment’. Curiously, this right of an accused is once again absent from the Church’s law since the 1983 Code came into effect! Canon 1531 (which replaces c. 1743 of the 1917 Code) reads as follows: "#1. A party who is lawfully questioned is obliged to respond and to tell the whole truth. #2. If a party has refused to reply, it is for the judge to evaluate what, as far as the proof of the facts is concerned, can be deduced therefrom."
37. At the beginning of this paragraph the Flannery edition translation gratuitously adds the words, "The varieties of crime are numerous:" The original text has nothing corresponding to this, and simply begins listing the different kinds of offences. In fact, one or two of the things listed would not always be accurately described by the words "crime" or "criminal". (Cf. also n. 36 below.)
38. These three words are inaccurately translated in the Flannery edition as "are criminal". (Could one plausibly claim that, for instance, "subhuman living conditions", especially in the world’s most wretchedly impoverished nations, are always and necessarily "criminal", i.e., the deliberate violation of a law on the part of somebody?)
39. The text of this allocution (excerpts translated above by the present writer from the original in French, with emphasis added) was never published in the Acta Apostolicae Sedis, but can be found at the Vatican website at: www.vatican.va/holy_father/john_paul_ii/speeches/1982/june The key statement for present purposes would be the last sentence in article 5 above, which is cited in the Compendium of the Social Doctrine of the Church (Vatican City: 2005), article 404 (cf. A13 above).The original text of this sentence reads as follows: "Spontanément, le disciple du Christ rejette tout recours á de tels moyens, que rien ne saurait justifier et oú la dignité de l´homme est avilie chez celui qui est frappé comme d´ailleurs chez son bourreau."
40. or "deplorable" (Latin dolenda). The approved English translation’s choice of "regrettable" seems too mild.
41. In the approved English version of the Catechism the past tense is used for the two present-tense verbs cited above from the definitive Latin text. In the original French version the first of these verbs was past tense (n’étaient) and the second present (conduisent).
42. AAS 87 (1995), 27 (my translation). The standard published English version of TMA has a defective translation at this point. The words cited in Latin above are rendered thus: ". . . could include suppressing the opinions of others or at least paying no attention to them". What the Pope plainly means here by secludi (lit., to be secluded, enclosed, fenced in, isolated) is legislation restricting or prohibiting the diffusion of such opinions, not "paying no attention" to them. Also, iubere here should be translated "required", "demanded", or "necessitated", not "could include". The difference is not without importance. The latter translation has the effect of making the Pope pass a direct ethical judgment against the liceity of such "suppression" and "isolation"; for to deny that these restraints "could [be] includ[ed]" among the various means for bearing witness to Catholic truth is to say, in effect, that it was morally unacceptable to include them. In reality, the only direct judgment John Paul is passing here is a historical/prudential one, namely, that such "suppression" and "isolation" of anti-Catholic opinions was not in fact necessary as a means toward the desired end of bearing effective witness to the truth.
43. Not "cannot", as the Flannery edition puts it. The Latin is "nec . . . sese imponere", not "nec . . . sese imponere posse".
44. Lest we be too quick to condemn the Roman Law presumption, it should be recalled that even the most enlightened modern jurists have so far been unable to figure out any way of safeguarding public order while simultaneously excluding all significant humiliation and suffering on the part of persons whose guilt has not yet been proven. For instance, the pre-trial imprisonment of those who cannot pay bail, and indeed, the refusal of bail to an accused who prima facie looks particularly dangerous or likely to fly the country, are of course standard procedures in all liberal democracies.
45. D 954 = DS 1757.
46. D1578 = DS 2678.
47. Ad Extirpanda is addressed not to the universal church, but only to civil authorities in Lombardy, The Marches, and Romagna (". . . per Lombardiam, Marchiam Tervisinam et Romaniolam "). Cf. Bullarium Romanorum Pontificum, op. cit., #27, p. 552.
48. Cf. CCC, ##2041-2043. There are six if we include (as some authorities do) the Church’s requirement that the faithful who enter into matrimony do so in accord with canon law (i.e., in the Catholic Church, not according to civil or non-Catholic religious rites, unless an episcopal dispensation is first obtained.).
49. E. Vacandard, the distinguished French historian of the Inquisition, considers it very probable that Innocent IV was unaware of his predecessor Nicholas I’s epistle condemning such torture. (Bulgaria, after all, is a little off the beaten track for Western Europeans.) By way of contrast, it would be an understatement to say that The City of God was well-known at that time: it was one of the foundational texts of medieval Christendom and was practically ‘core-curriculum’ reading for theologically educated clerics.
50. ". . . damnamus, reprobamus, atque omnino reicimus". Cf. DS 1492.
51. I do not mean that possible defenses of Pope Leo X's statement should never be essayed by those apologists who might wish to pursue the point. If Luther’s proposition was meant to imply – and it probably was not – that, as a matter of strict justice, no possible crime can ever deserve a fate as bad as being burnt to death, i.e., that to inflict such a penalty is intrinsically evil, Leo could reasonably have retorted that it was the Holy Spirit who inspired the Book of Leviticus, which enjoins precisely that penalty for certain offences. If the point was rather that heresy should not be treated as a capital offense, then it should at least be remembered that at that time heresy was a very real threat to a just public order, by virtue of posing a serious threat to the Church’s own freedom (not just her socio-political dominance). For the heretics were no more tolerant than Catholics were at that period, and made clear in word and deed their determination to persecute the latter once they attained power. Moreover, the condemned proposition could indeed have been genuinely "seductive of simple minds" in the sense that, just as it stands, the words "contrary to the will of the Spirit" could easily be associated with what the Gospel describes as the worst of all sins: the unforgivable "sin against the Holy Spirit" (cf. Mk 3: 28-29). And burning heretics, however opposed to the spirit, if not the letter, of the Law of Christ, is certainly not that.
52. Cf. Lk 9: 52-56, and B3 in Part I of this paper.
53. Cf. B7 above.
54. Cf.Acta Synodalia III, V, p. 131 (#20 of the original schema on the Church in the Modern World).
56. ". . . dignitati personae humanae magis consentanea" (CCC #2267).
57. The text of the U.N. Convention is quoted here from Sanford Levinson (ed.), Torture: a Collection (New York: Oxford University Press, 2004), p. 147.