Pope Francis’s Apostolic Constitution Pascite gregem Dei drew considerable attention for the pontiff’s wide-ranging reforms of Book VI of the 1983 Code of Canon Law, containing the Church’s penal law. Much of the attention focused on the Pope’s revision to the laws dealing with sexual abuse. Francis has spent much of his pontificate addressing the filth of sexual abuse in the Church and the Church’s response. The new Book VI represents another major step forward in addressing in a serious way the abuse crisis and its consequences. However, there was some attention devoted to the Pope’s general comments on a jurisprudence of penal law within the Church. These comments have a much wider applicability. Indeed, Pope Francis’s insightful connection between charity and the penal law goes to the very heart of human law in St. Thomas Aquinas’s concept.
In Pascite gregem Dei, Francis takes aim at a certain antinomian tendency that has been widespread in the Church. Despite the rhetoric of some of the Pope’s self-appointed spokesmen, Francis makes clear that he views this antinomianism extremely negatively. “Elapsis temporibus, multa mala secuta sunt ex defectu perceptionis intimi nexus in Ecclesia exsistentis inter exercitium caritatis et poenalis disciplinae usum, quoties adiuncta id requirunt.”—“In the past, great damage was done by a failure to appreciate the close relationship existing in the Church between the exercise of charity and recourse — where circumstances and justice so require — to disciplinary sanctions.”
Indeed, for Francis, failure to impose penal sanctions leads to toleration of wickedness. “Hic cogitandi modus – ut experientia docet – periculum secum fert degendi vitam iuxta mores disciplinae contrarios, ad quorum remedium solae exhortationes vel suasiones non sufficiunt.”—“This manner of thinking — as we have learned from experience — risks leading to tolerating immoral conduct, for which mere exhortations or suggestions are insufficient remedies.” This is an interesting point, especially in the context of the debates presently roiling the American Church over politicians and so-called Eucharistic coherence. No doubt bishops, canonists, and commentators in the Church-adjacent media will debate the issue; it is outside my scope here.
The overarching theme for Francis is the connection between charity and the penal law. “Caritas quidem postulat ut Pastores ad systema poenale recurrant quoties id necessarium est, attentis tribus finibus qui ipsum necessarium reddunt in societate ecclesiali, nempe ut iustitiae exigentiae restituantur, reus emendetur et scandala reparentur.”—“Charity thus demands that the Church’s pastors resort to the penal system whenever it is required, keeping in mind the three aims that make it necessary in the ecclesial community: the restoration of the demands of justice, the correction of the guilty party and the repair of scandals.” Charity is more than a consideration, a nice idea that pastors will pay lip service to when they set out to impose penal sanctions: it is the cause of the exercise of the penal law.
This is not a new theme for Francis. He has previously emphasized the importance of charity in the context of penal law. For example, in a February 2020 address to the Pontifical Council for Legislative Texts, he observed, “[I]n contrast to what is provided for by the State legislature, canonical punishment always has a pastoral significance and pursues not only a function of respect for the law, but also reparation and above all the good of the guilty person himself.” Seen in this context, Pascite gregem Dei is a further, definitive elaboration of Francis’s jurisprudence, not a new departure.
Nevertheless, old or new, Francis’s insight is an uncommon one: certainly in 2021 few people draw an intuitive connection between penal sanctions in the Church and charity. But one is reminded of St. Thomas Aquinas’s point that we are called to love sinners, and to love sinners truly we must hate their sin (ST II-II q.25 a.6 co.). This has several consequences for Aquinas in the order of charity. For one thing, we ought to desire to see that the sin be destroyed and the man live (ST II-II q.25 a.6 ad 3). But if that becomes impossible, we must prefer the public good to the proper good of an individual in inflicting punishment (ST II-II q.25 a.6 ad 2).
While Francis draws a distinction between canonical sanctions and the sanctions available under the civil law, it is worth pondering the connection he draws between punishment and charity in the context of the civil law. As is often the case with Francis, there is lurking in the background of his argument a Thomistic basis. Recall in Fratelli tutti, Francis insisted that “[w]ithout charity, we may perhaps possess only apparent virtues, incapable of sustaining life in common. Thus, Saint Thomas Aquinas could say – quoting Saint Augustine – that the temperance of a greedy person is in no way virtuous” (para. 91; ST II-II q.23 a.7 co.). One may say the same thing about justice, itself a virtue (ST II-II q.58 a.3 co.). But the connection between charity and the penal law goes even deeper.
St. Thomas Aquinas reminds us that law is a rule or measure of human acts (ST I-II q.90 a.1 co.). The purpose of human law is to lead men to virtue gradually (ST I-II q.96 a.2 ad 2). Virtue is, of course, a good habit and productive of good works (ST I-II q.55 a.3 co.). The principle act of charity is to love (ST II-II q.27 a.1 co.). And, of course, charity requires that we love our neighbor (ST II-II q.25 a.1 co.). Love is nothing more or less than to will good to someone (E.g., ST I-II q.26 a.4 co.). Remember, too, that will in accordance with reason is an essential part of the nature of law (ST I-II q.90 a.2 ad 3).
Seen in this light, the connection between the penal law and charity becomes obvious. To view penal laws as purely retributive—someone has done something bad and must be punished—is to deprive them of the essence of human law. To be sure, punishment is an important component of the penal law, but the purpose of human law generally is to lead men to virtue. This is to will their good in a concrete way: virtue is a good habit and productive of good works. It is good for people to be virtuous. The penal law insofar as it leads men to virtue by restraining more grievous vices is an act of charity (ST I-II q.96 a.2 co.).
Here one is reminded of the recent amendment to No. 2267 of the Johanno-Pauline Catechism of the Catholic Church declaring the death penalty “inadmissible.” Luis Cardinal Ladaria, prefect of the Congregation for the Doctrine of the Faith, discussed the amendment in terms of doctrinal development, rooting Francis’s statements in the prior statements of John Paul II and Benedict XVI. One wonders however if the connection between the penal law, even in the civil context, and charity would not have furnished a firmer ground for the amendment. Can it be said that the death penalty is serving in a meaningful way to lead men to virtue?
It is certainly true, too, that neglect of the penal law leads to the same toleration of vice in the state. Consider, for example, marijuana (cf. ST II-II q.150 a.3 ad 2). In Standing Akimbo v. United States, Justice Clarence Thomas, in a statement respecting denial of certiorari, recently called into question the constitutionality of federal marijuana regulation precisely because of the “half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.” The federal government’s inconsistent approach to marijuana law has led with startling speed to widespread toleration of the vice and may yet have more serious consequences. Recall St. Paul VI’s repeated warnings throughout his pontificate about the intimate connection between drug taking and all other forms of vice.
Charity is bound up inextricably with the penal law, both in the Church and in the state. However, it is an under-discussed aspect of the penal law. Perhaps this is charity’s moment—in the state no less than the Church. Since the events of the summer of 2020, there has been a renewed focus on the penal law of the United States and its application. Francis’s startling connection between charity and the penal law could guide efforts for the reform of the penal law in the United States. Laws that do not reflect charity—laws that do not seem liable to lead citizens to virtue by restraining the more grievous vices—ought to be reconsidered seriously. Likewise, when judges are called upon to interpret and apply the penal law, the inclusion of charity as a consideration could result in markedly different judgments. Through such efforts, the penal law would be brought more perfectly into line with the very essence of law.
Pat Smith
