Addresses of Pius XII on Purposes of Punishment and the Death Penalty
HIS HOLINESS POPE PIUS XII’s ADDRESS TO THE DELEGATES OF THE FIRST NATIONAL CONGRESS OF ITALIAN LAWYERS
6th November 1949
It was a happy thought of yours, dear sons, that as seat of your first national Congress of the Union of Catholic Lawyers you should have given preference to Rome. even though other cities of Italy could have given you more fitting and worthy welcome. During your discussions you have given definite shape to the internal constitution of your Union and as the outcome of your deliberation you have approved the Statute and elected the Presidency which. according to the basic norms approved by you. will foster its development and guide its movement. Whilst We congratulate you on the work you have done We cannot fail to take notice of your desire and care, in the true and genuine spirit of the Catholic lawyer, to adorn the beginnings of your movement a double aureole, the radiance from eternal Rome and the profession which is your honour.
Rome Mother of Law
You are in the first place lawyers who follow a most noble science which studies, regulates and applies the basic principles on which rest, order, peace, justice, security of life in the social intercourse of individuals, of societies and nations. Rome can boast that she is the great mother of law. Other peoples of old have gloried in the splendour of the arts, or in the depth of their philosophical speculation or again in the refinement of their culture, but the Roman people were second to none in their deep sense of law and in the establishment of those wonderful juridical institutions through which was brought unity to the then known world. They have left behind a tradition which has remained proof against the gnawing ravages of time.
You are lawyers, true, but you are, besides, and profess to be, Catholic lawyers. NOW Rome is by God’s design the lighthouse of the faith, the shining splendour of the faith of Christ, the centre of the visible unity of the Church, the seat of the supreme magistrature of souls, where Catholicism is seen in particular strength and grandeur and where it is made more tangible than in any other country of the world because from all nations multitudes flock to the See of Peter and to the place of his burial.
Corpus Juris and Apostolic See
The Empire of the Caesars crumbled at the onset of the nations that rushed in across its frontiers. From the decadence of the mightiest and most majestic city known in history two things survived. One the Corpus Juris, which became the law of all civilised Europe. It survives to a considerable degree in the institutions of to-day and is the object of profound study. It is looked upon as the living tree whose sap has not dried with the passage of the years, but which still retains the unifying power which unfolded in the slow process of its growth. The second thing which survived was that new faith brought by St. Peter and St. Paul. the new chair of truth set firmly in place by the first visible head of the Church who was chosen by Christ himself and to whom was given the power of the keys. This City he chose as his See.
Age succeeded age and broke before a granite wall without leaving a scratch upon it; many shifting events of fortune have crowded against her to shake her and beat her down. All in vain. You see her still today sound and whole lifted on high above the nations as a sign for all to see of the undying character of the work of Christ.
So it happened that both in Rome, and in the world leavened by civilisation, two most vital forces emerged — one the fruit Of the legal wisdom of a people and hence in origin human — the other a radiation of that revelation proclaimed by the Son of God made man, and hence in origin transcendent and divine. These living influences meeting together were closely welded, and thus it came about that the Roman Law flooded with the new light of the Christian message was at length in spirit transformed. Its conception was uplifted, many of its institutions were bettered, its character enriched, as it kept gathering to itself the principles, the ideas, and the nobler demands of the new teaching.
The offspring of this fruitful wedlock of wisdom human and divine was the legislative work of the Christian Emperors. Of this union there still remain lasting traces which enable the modern world to understand that between the genuine science of law and the teaching of Christian faith there is no conflict. This is because faith cannot but set its seal on the truth which the mind of man discovers, examines and arranges in orderly fashion. Wherefore We have said that your choice of Rome as the seat of your first Congress was wise and timely. At the same time it has served to recall to you the noble dignity of your profession and the nature of the demands Which the particular calling, in which you glory, makes upon each one of you as you perform your task.
It was Ulpian who gave us a magnificent description of the noble character of your profession when he said that jurisprudence was: “divinarum atque humanarum rerum notitia, justi atque injusti scientia” (Knowledge of things human and divine, the science of what is just and unjust).
Jurisprudence, its object
What a noble object he thus assigns, in his definition of juris and how he lifts it above other branches of human knowledge! For the mind of the lawyer worthy of the name roams over a vast horizon extent and variety is understood when one considers the matters to which he must turn his attention and thought. First and foremost he must know things divine: “divinarum rerum notitia,” and this not merely because to religion belongs the first place in the guidance of the believer’s conduct which itself is subject to the standards laid down by law — not merely because some of the chief institutions, marriage, for instance, are sacred, a fact of which law must take account — but above all because without this higher knowledge of things divine, the human scene, which is the second and more immediate object: “humanarum rerum notitia,” on which the mind of the lawyer must be fixed, would have no foundation. We mean the foundation which stands above every human change in B and space and rests in the absolute, namely God.
Beyond doubt the lawyer is not by virtue of his profession called to devote himself to speculative theology in order to know the object of his studies; but if he be unable to lift his mind to the vision of the supreme and transcendent reality from whose will not only the universal order known to us takes its rise, but also the order of that small part of the universe which is the human race with its own inherent and morally necessary laws, it will be impossible for him to see in all its wonderful unity and its deep and intimate spiritual depth the intertwining of social relationships over which the law presides. Nor will he be able to grasp the standards to which they are meant to conform.
The great Roman lawyer and orator said: “natura juris… ab hominis repetenda est natura the nature or essence of law can only be derived from man’s nature itself.” (Cicero, De legibus; 1.1. cap. 5, 17). This being so, knowledge of this nature and its perfection cannot be even approximately acquired, neither can its perfection, dignity, nobility, nor the purposes which guide and control its activity be known, unless one realises the ontological link that binds nature to its transcendent cause. It is plain, therefore, that if the lawyer does not give up the idea of looking at man and human affairs as though they were outside the radiance of the light that streams from God, he will never gain a right understanding of law, nor will he be able to bring right order into it. For this very light is given him to shed its beams across the rugged path of his study and research.
The mistake made by modern Rationalism is precisely this, that it seeks to build up a system of human right and the general theory pf law on the supposition that man is by nature a being standing independent of any Being above and superior to himself on whose creative and controlling will he depends both for his existence and activity. You know how the legal opinion of to-day, having once made initial error, has become entangled in an endless maze of difficulties. You are aware how these lawyers who have bowed to the behests of so called, have fallen below the level of their profession, use they have lost sight of human nature properly understood, and have consequently lost also the only sane conception of law. For have deprived it of that constraining influence on a man’s conscience which is the first and principal effect of law.
Those things divine and human, of which Ulpian’s definition makes mention as the most general object of jurisprudence, are so closely knit together that to lose sight of the former is to leave oneself unable to have a right reckoning of the latter.
All the more is this seen to be true in so far as the more s object of jurisprudence is “justi atque injusti scientia,” knowledge of what is just and unjust; in other words of the part played by justice in balancing the demands of the individual and the community in the human family.
Justice and Law
Justice is not merely something abstract, an external ideal to which human institutions must be made to conform as far as possible at a given period of history. It is above all something immanent in man, in society and in the basic institutions of society. It is immanent by reason of the sum total of practical principles that it dictates and imposes, and of the standards of general conduct which are part and parcel of the objective order human and social, an order established by the sublime mind Of the Maker of all things.
The science of what is just and unjust supposes, therefore, a more sublime wisdom, which consists in knowing both the order in creation and the Creator of order.
Law, as Aquinas taught, is “objectum justitiae” (Summa Theol 2, 2 dae. q.57, a 1.), that is to say it is the standard by which concrete form is given to the great and fruitful idea of justice. As such, if it lead back to God who is essentially Justice eternal and changeless, then too from Him it receives light and clearness, strength and force, meaning and reality.
The Lawyer and Man
The lawyer therefore treads his way between the infinite and the finite, between the divine and the human, and herein consists the noble character of the studies which he pursues. Other reasons because which he holds such an honoured place amongst his fellows, suggest themselves as following from those already mentioned. If the object of his study are standards of justice, then the subject for which these exist is man, the human person, who therefore falls within the field the lawyer’s competence.
We speak of man, mark you, not in the lower and less noble part of his nature. These are indeed the object of other most useful admirable sciences. Rather we are thinking here of man in his part, man specifically as man, a rational agent living under the law rational nature. Obedience to this law presupposes certain standard: of conduct, and these are either dictated to him directly by his conscience, which is the reflection and the herald of a law still higher, or upon him by that human authority which rules his life in common with others.
It is true that man, as seen by the lawyer, is not always viewed in the finer aspect of his rational nature, but often presents to the student his baser side, his evil inclinations, his wicked perversity, his faults and sins. Even so the lawyer of true understanding will not lose sight of that deep abiding human element from which no sin or misdeed can remove the seal imprinted thereon by the hand of the Creator.
Then if you regard man, the subject of law, with the eye of Christian faith what a crown of light will you not see upon his head! It is the light shed on him by the redemption of Christ, by the blood shed for his ransom, by the supernatural life restored to him so that he may have share in it, and by the ultimate end assigned to him as the goal of life’s journey here on earth.
In the new dispensation the subject of law is not man in the state of “pure nature,” but man uplifted by the grace of the Saviour, to the supernatural order and, by that very fact, placed in contact with the divinity through a new life bestowed on him, which is in fact God’s own life in which he is allowed to share.
Thus does his dignity increase till it touch the infinite, and it follows that the dignity of the lawyer is ennobled, in that man is the subject of his study.
The irreconcilable differences between the lofty conception of man and his rights in the light of Christian teaching such as We have endeavoured briefly to expound, and juridical positivism, can be the occasion of a deep-seated bitterness. We are well aware, dear sons that in the mind of a Catholic lawyer who wishes to be loyal to the Christian conception of law, there can arise difficulties of conscience, and particularly when he finds himself in the position of having to apply a law which conscience condemns as unjust. Thank God that in your case the task is lightened considerably, because in Italy divorce (the cause of so much anguish of soul even in the magistrate who has to administer the law) has no right in citizenship. Yet it is true that at the end of the eighteenth century, especially in those places where persecution raged against the Church, cases have multiplied in which Catholic magistrates have found themselves faced with the painful problem of the application of unjust laws.
Standards of Lawyers’ Conduct
Wherefore We take the occasion from this gathering in Our presence, to enlighten the conscience of Catholic lawyers by setting forth some basic standards of conduct.
1. In every sentence passed, the principle holds that the judge cannot purely and simply lay aside the responsibility of his decision and leave it to rest on the law and the lawmaker. No doubt these latter bear the chief responsibility for the effects of the law in question. But the judge in passing sentence, applies the law in a particular instance and so carries joint responsibility with those who framed the law, both for the law itself and for the effects that flow from it.
2. A judge may never by his decision oblige any person to perform an action that is intrinsically immoral, that is to say an action contrary to the law of God or of His Church.
3. A judge may never expressly recognize and approve an unjust law which, in fact, can never be the basis of a valid judgement in conscience and before God. Wherefore he cannot pronounce a penal sentence which would be equivalent to approval of such a law. His responsibility would be all the greater if the sentence were cause of a public scandal.
4. Nevertheless, not every application of unjust law can be considered as recognition or approval. In such case the judge can — and perhaps must — at times let the unjust law have its way, if it be the only means of preventing a greater evil. He can inflict a penalty for the breaking of an unjust law if he knows that the person penalised is reasonably disposed to pay the penalty in order to prevent the greater evil, or to gain a good end of far greater importance. Thus, in time of persecution, it has often happened that priests and layfolk have allowed themselves to be condemned even by Catholic magistrates, to fines or imprisonment or to privation of personal freedom for breaking an unjust law, when, by such a course, it was possible to preserve what was honest in legislature and to avert from the Church and the faithful still more fearful calamities.
Naturally, the graver the consequences of the judicial sentence the more important and universal should be the good to be preserved or the evil to be avoided. There are however, cases in which this balancing of higher good to be attained and the greater evil to be avoided has application, as for example, in the passing of sentence of death. To take a particular case a Catholic judge cannot, save for reasons of the highest importance, pronounce a sentence of civil divorce (where such is the practice) when it is a question of a marriage that is valid before God and the Church. He must not forget that a sentence in such a case besides having a practical bearing on civil effects, does in fact encourage the erroneous idea that the existing bond is really broken and that a new one is valid and binding.
With all our heart then, beloved sons, we hope and pray that divine Providence may enable you always to perform your task in the environment of legislation that is both just and in keeping with the rightful demands society. strive in every way to put into practice the ideal of a perfect lawyer, of one who, by his ability, wisdom, conscientiousness and uprightness will deserve and win for himself the confidence of everyone.
Such is our hope and as an earnest of the most bountiful divine favours, with fatherly good will, we bestow on you no less than on your newly-born Association which is so full of promise, Our Apostolic Benediction.
Pope Pius XII Address to the Sixth International Congress of Penal Law
October 3, 1953
It seems to Us that very rarely has so important and select a group of jurists and specialists in the science and practice of law, from the whole world, been gathered together in the house of the Pope, as that which we see assembled around Us today. Our joy in wishing you welcome, gentlemen, to Our home is all the greater for it. This greeting is addressed to each of you individually and to the whole of your Sixth International Congress of Penal Law, which during these recent days has been extremely active. We take a deep interest in the results of your Congress, and We feel Ourselves obliged to make some considerations of principle concerning its objectives and resolutions. We hope, in so doing, to respond to the wishes expressed from among you to Us.
A peaceful and ordered social life, whether within a national community or in the society of nations, is only possible if the juridical norms which regulate the living and working together of the members of the society are observed. But there are always to be found people who will not keep to these norms and who violate the law. Against them society must protect itself. Hence derives penal law, which punishes the transgression and, by inflicting punishment, leads the transgressor back to the observance of the law violated.
States and peoples have each their own penal law; these laws are made up of a multitude of parts; between them there always remains a greater or less diversity. But since in our times people easily change their place of residence and frequently pass from one state to another, it is desirable that at least the most serious crimes should have a sanction everywhere and, if possible, of an equal severity, so that the culprits may nowhere be able to escape or be shielded from the punishment of their crimes. It is an agreement and reciprocal support of this kind between nations that international penal law strives to realize.
If what We have just said holds good in normal times, its urgency is particularly evident in time of war or of violent political disturbances, when civil strife breaks out within a state. The offender in political matters upsets the order of social life just as much as the offender in common law: to neither must be allowed assurance of impunity in his crime.
To protect individuals and peoples against injustice and violations of the law, by formulating an international penal code, is a lofty aim, to the attaining of which We wish to contribute by addressing a few words to you.
We will speak first of all of the importance of international penal law, as brought out by the experience of the last decades.
This experience covers two world wars with their repercussions. During these changes, both within countries and between one country and another, and when totalitarian political regimes were developing without check, deeds were done, governed only by the law of violence and success. We were witnesses then of a cynical attitude which would be unthinkable in normal times, in attaining the end proposed and in neutralizing the enemy, who was in general hardly considered as a human being. It was not blind natural forces but men who, now in savage passion, now in cold reflection, brought unspeakable sufferings, misery and extermination to individuals, communities and to whole nations.
Those who acted thus felt secure, or tried to procure for themselves the assurance, that no one could ever or in any place call them to account. If fortune turned against them, it would be always possible for them to flee to a foreign country. Such was the attitude of soul of those who acted as criminals themselves, or, presuming on their power, commanded and forced others to act, or let them commit evil, even though they could’ and were obliged to restrain them from it.
All this created among those involved the impression that no law existed, of a lack of protection, of being the playthings of an arbitrary will and of brute force. But a demand also made itself felt: that all the culprits of which We have just spoken, without consideration of persons, should be obliged to render account, to suffer the penalty, and that nothing should be allowed to save them from the chastisement of their acts, neither success nor even the excuse of an “order received from a higher authority.”
It is the spontaneous human sense of justice that demands a sanction, and which perceives that the threat of an universally applicable penalty is a guarantee, not to be neglected even though not infallible, against such wrongdoing. This sense of justice has, on the whole, found a sufficient expression in the penal code of states, for what concerns offenses of common law; to a lesser degree, in the case of political violence within states; and hardly at all, up to the present, for acts of war between states and peoples.
But a balanced sense of justice is no less clear and imperious in its demand for sanctions in the last-mentioned case than in the others, and if it is satisfied, it will be equally strong in its restraining force. The certitude, confirmed by treaties, that one must render an account-even if the criminal act succeeds, even if the offense is committed abroad, even if after having committed it one flees to a foreign country-this certitude is a guarantee not to be underestimated. The consideration of these circumstances is calculated to make one understand, even at first sight, the importance of an international code of penal law. For, in fact, we are not dealing here with the simple demands of human nature and of moral duty, but with working out clearly defined coercive juridical norms which, in virtue of formal treaties, may become obligatory for the contracting states.
In the second place We will speak of the categories of crimes which will concern international penal law.
If already the common penal law must apply the principle that it cannot take as its object all acts against morality but those only which seriously threaten good order in the life of the community, this same principle deserves very particular attention in the construction of an international system of penal law (cfr. St. Thomas of Aquin. Summ. Theol. 1. 2ae. q.96 a.2 and 1). It would be an undertaking doomed beforehand to failure to try to set up international agreements covering all violations of law, however slight. In this matter, attention must be directed only to crimes that are particularly serious, even only, We might say, to those which are extremely serious. It is only for such crimes that it is possible to establish a uniform penal code between states.
Besides, the choice and definition of the crimes to be punished must be based on objective criteria: namely on the serious nature of certain crimes, and on the necessity to take measures precisely against them. In the light of these two considerations it is of paramount importance to consider the following points:
(1) the value of the good attacked; it should be something of the highest importance;
(2) the force of the inclination to violate the good;
(3) the intensity of the evil will which is normally exercised when these crimes are committed;
(4) the gravity of the perversion of juridic order, considering the person who commits the crime; for example, in the case where those who should maintain law, themselves break it;
(5) the seriousness of the threat to the juridic order because of extraordinary circumstances which, on the one hand, increase the danger of criminal acts being attempted and, on the other, make them much more formidable in their effects. Consider, for example, extraordinary situations, such as war or siege.
Basing Ourselves on these criteria, a number of cases can be mentioned for which international law ought to establish a sanction.
In the first place, there is the crime of making a modern war which is not required by absolute necessity of self-defense, and which brings with it, as We can assert without hesitation, unthinkable ruin, suffering and horrors. The community of nations must reckon with unprincipled criminals who, in order to realize their ambitious plans, are not afraid to unleash total war. This is the reason why other countries, if they wish to preserve their very existence and their most precious possessions, and unless they are prepared to accord free action to international criminals, have no alternative but to get ready for the day when they must defend themselves. This right to be prepared for self-defense cannot be denied, even in these days, to any state. That, however, does not in any way alter the fact that unjust war is to be accounted as one of the very gravest crimes which international penal law must proscribe, must punish with the heaviest penalties, and the authors of which are in every case guilty and liable to the punishment that has been agreed upon.
The world wars through which humanity has lived, and the events which have taken place in the totalitarian states, have given rise to many other evils, at times even more serious, which a code of international penal law should render impossible, or from which it ought to free the community of nations.
Also, even in a just and necessary war, the ways of acting which would lead to victory are not all defensible in the eyes of those who have an exact and reasonable concept of justice. The mass shooting of innocent people, in reprisal for the fault of an individual, is not an act of justice, but an injustice, sanctioned indeed by authority. One does not acquire the right to execute innocent hostages just because it is looked on as a necessity of war. In these last decades we have seen massacres out of racial hatred; the horrors and cruelties of concentration camps have been revealed to the whole world; we have heard of the “liquidation” by hundreds of thousands, of “beings not fit to live”; pitiless mass deportations in which the victims were delivered up to destitution, often along with their wives and children; force used against great numbers of defenseless young girls and women; manhunts organized among civilians in order to procure workers, or rather slaves for work.
The administration of justice has in places degenerated into an unlimited arbitrariness, whether in the methods of examination, or in the sentence, or in the carrying out of the sentence. In order to be revenged on one whose actions were perhaps morally irreproachable, they have not at times been ashamed to take action against the members of his family.
These few examples-you know that many others exist can suffice to show what class of crimes ought to constitute the object of international agreements, which could secure effective protection, and which would indicate clearly the crimes to be proscribed, and would fix their characteristics with juridic precision.
The third point which calls for at least a brief mention concerns the penalties to be demanded by international penal law, about which a remark of a general nature will suffice.
It is possible to punish in a way that would hold the penal law up to ridicule; but it is also possible to punish in a way that surpasses all reasonable measure. In the case where human life is made the object of a criminal gamble, where hundreds and thousands are reduced to extreme want and driven to distress, a mere privation of civil rights would be an insult to justice. When, on the contrary, the violation of a police regulation, a thoughtless word against authority, are punished by the firing squad or by forced labor for life, the sense of justice revolts. The fixing of the penalties in penal law and their adaptation to the individual case should correspond to the gravity of the crimes.
As a rule the penal law of the various states enumerates the sanctions and defines the norms which determine them, or else it leaves this to the judge to do. But it will be necessary to try to secure, by international agreements, a settlement of these penalties, in such wise that the crimes mentioned in the agreements may not be at an advantage anywhere; that is to say, that their punishment be not less formidable in one country than in another, nor that there be hope of a more lenient judgment before one tribunal than before another. It would be impossible to impose such a settlement on states by force, but an objective exchange of views would, nevertheless, give the hope of attaining agreement bit by bit on essentials. There would be no invincible obstacle, except from a political system built, itself, on the aforementioned injustices which the international agreement is to prosecute. Whoever lives by injustice cannot contribute to the formulation of law, and he who knows himself to be guilty will not propose a law which establishes his guilt and hands him over to justice. This circumstance explains in some degree what happened when recognition was sought for “The Rights of Man,” although there are other difficulties, which proceed from entirely different causes.
We will speak, in the fourth place, of the juridical guarantees, of which there is question on several occasions in the program of your Congress.
The function of law, its dignity, and the sentiment of equity natural to man, demand that from first to last the punitive action should be based, not on arbitrary will and passion, but on clear and firm juridical rules. That means, first of all, that there is a judicial trial-at least summary, if there is danger in delay-and that the trial be not bypassed, in reaction against the offense, and justice thus presented with an accomplished fact. To avenge a bomb thrown by an unknown hand by machine-gunning the passers-by who happen to be in the road is not a legal way of acting.
The very first step in the punitive action, the arrest, must not be done wantonly, but must respect juridical norms. It is not admissible that even the most irreproachable citizen might be able to be arrested arbitrarily and disappear without a word into prison. To send someone into a concentration camp and keep him there, without any regular trial, is a mockery of the law.
The judicial investigation must exclude physical and psychic torture and narcoanalysis; first of all, because they violate a natural right, even if the accused is really guilty, and, secondly, because they too often give erroneous results. It is not unusual for them to end in the precise confessions desired by the court, and in the ruin of the accused, not because the latter is guilty in fact, but because his physical and psychic energy is exhausted, and he is ready to make all the declarations required. “Rather prison and death than such physical and psychic torture!” We find abundant proof of this state of things in the spectacular trials, well known to all of us, with their confessions, self-accusations, and demands for pitiless chastisement.
It is about 1100 years since the great Pope Nicolas I, in the year 866, replied in the following manner to the question of a nation which had just come into contact with Christianity (Nicolai prima responsa ad consulta Bulgarorum, cap. LXXXVI, 13 Nov. 866-Mon. Germ. hist., Epp. tom. VI, page 595) :
If a thief or a bandit is caught, and denies what is imputed to him, you say among you that the judge should beat him on the head with blows and pierce his sides with iron spikes, until he speaks the truth. That, neither divine nor human law admits: the confession must not be forced, but spontaneous; it must not be extorted, but voluntary; lastly, if it happens that, after having inflicted these sufferings, you discover absolutely nothing concerning that with which you have charged the accused, are you not ashamed then at least, and do you not recognize how impious your judgment was? Likewise, if the accused, unable to bear such tortures, admits to crimes which he has not committed, who, I ask you, has the responsibility for such an impiety? Is it not he who forced him to such a deceitful confession? Furthermore, if some one utters with his lips what is not in his mind, it is well known that he is not confessing, he is merely speaking. Put away these things, then, and hate from the bottom of your heart what heretofore you have had the folly to practice; in truth, what fruit did you then draw from that of which you are now ashamed?
Who would not wish that, during the long interval passed since then, justice had never departed from this rule! That it should be necessary today to recall this warning, given 1100 years ago, is a sad sign of the aberrations of judicial practice in the twentieth century.
Among the safeguards of the judicial action is also reckoned the freedom of the accused to defend himself, truly, and not just for form. Both he and his counsel must be permitted to submit to the court all that speaks in his favor. It cannot be allowed that the defense may only put forward what is acceptable to the court and to a biased justice.
An essential factor of the safeguards of the law is the impartial composition of the court of justice. The judge may not be biased, either personally or for the state. A judge who has a true sense of justice will himself renounce the exercise of his jurisdiction in a case in which he would consider himself to be an interested party. The “popular tribunals,” which, in the totalitarian states, were composed entirely of members of the party, offered no juridical guarantee.
The impartiality of the college of judges should also be assured, and especially when international relations are involved in the penal process. In such a case it may be necessary to have recourse to an international tribunal, or at least to be able to appeal from a national to an international one. One who is outside the quarrel feels there is something wrong when, at the end of hostilities, he sees the conqueror judge the conquered for crimes of war, when the conqueror himself has been guilty of similar deeds towards the conquered.
The conquered may undoubtedly be guilty; their judges may have a clear sense of justice and the desire to be entirely objective; nevertheless, in such a case, the interest of the law, the confidence which the sentence is to command, will often require that neutral judges be added to the tribunal, and that the decisive majority depend on them. The neutral judge should not then consider that it is his duty to acquit the accused; he should apply the law as it exists, and regulate his actions according to it.
But the aforementioned addition of neutral judges gives the parties immediately concerned, the disinterested third party, and world opinion a greater certitude that “right” will prevail in the decision. It undoubtedly constitutes a certain limitation of private sovereignty, but this limitation is morp than compensated for by the increase in prestige, and by the added regard and confidence for the judicial decisions of the state which acts thus.
Among the safeguards demanded by the law there is none, perhaps, more important or more difficult to secure than deciding culpability. It should be an unassailable principle of penal law that the “penalty” in the juridical sense always presupposes a “fault.” The simple relation of cause to effect does not merit to be considered as a juridical principle, sufficient in itself. This assertion does not in any way undermine the law. In the crime committed with an evil intention, the principle of causality is fully verified; the result-the “effectu secuto” of Canon Law-may, in fact, be required in order to be sure that a crime was really committed. But in penal law, causality and the resultant effect are only imputable if accompanied by culpability.
Here the judge meets with, difficulties, even with great difficulties, to resolve which a conscientious examination of the subjective element is necessary. Did the author of the offense sufficiently know the illegality of his action? Was his decision to do it substantially free? In answering these questions one will be helped by the presumptions allowed for by the law. If it is impossible to establish the guilt with moral certitude, one will abide by the principle that “in doubt the presumption is in favor of the accused.”
All this is already to be found in the simple criminal case. But the numerous trials of the war, and after the war up to our own day, have given the question a particular character. The judge had, and still has to study the case of those who have commanded others to commit a crime, or who have not prevented it when they could and should have done so. More often still there arises the question of the guilt of those who have only acted on the orders of their leaders, or were even forced by them under the threat of the direst punishments and even death. Very often, in these trials, the accused have pleaded the circumstance that they were only acting on “orders from above.”
Would it be possible to secure by international agreements that leaders, on the one hand, be rendered juridically incapable of ordering crimes, and punishable before the law if they do so; on the other, that subordinates be dispensed from executing such orders, and punishable in the law if they obey them? Would it be possible to suppress by international agreements the juridical contradiction by which an inferior’s property and life are threatened if he does not obey, and by which, if he obeys, he has to fear that at the end of hostilities the injured party, if he gains the victory, will hand him over to justice as a “war criminal”?
The moral principle in such cases is absolutely clear: no higher authority can validly command an immoral act; there exists no right, no obligation, no permission to accomplish an act, evil in itself, even if it is ordered, and even if the refusal to do the action involves the worst personal damages. This moral principle is not under discussion here. We are interested for the moment in putting an end to the juridical contradiction which We have mentioned by establishing, through international agreements, positive juridical rules, well defined and recognized by the contracting states as binding.
The same need for an international settlement exists for the principle of collective guilt, so often used and applied during recent decades, about which the judge had often to decide when determining the culpability of the accused, and which more often has served to justify administrative measures. States and tribunals, which found in collective guilt a justification for their pretentions and maneuvers, invoked the theory and applied it as a rule of action. Their opponents questioned its validity and even considered it unacceptable in any order of things established by man alone, because tainted with contradiction in itself and from the juridical point of view.
But here again, the ethical and philosophical problem of purely collective guilt is not at stake for the moment. We are concerned rather with finding and fixing a practical juridical formula to be adopted in case of conflict, and especially of international conflict, when collective guilt can be of decisive importance for determining culpability, and has been more than once. The safeguard of a regular juridical trial demands that in this conjuncture the action of governments and of courts should be secured against arbitrariness and purely personal opinion, and be solidly founded in clear juridical rules: a foundation which corresponds to sane reason and to the universal sentiment of justice, and at the service of which the contracting governments may be able to put their authority and their power of coercion.
To conclude, We wish to say a word concerning some of the foundations of penal law:
1. The establishment of any positive law presupposes a series of fundamental needs existing in the nature of things.
2. The penal law must be built on man, considered as a personal, free being.
3. Only a person, who is guilty and responsible to a higher authority, may be punished.
4. The penalty and its application are in the last analysis postulates of the juridic order.
1. The law is ultimately founded on the stable and immutable nature of things. Wherever there are men and nations gathered in communities with laws, are they not precisely human beings with a nature which is essentially the same? The needs which derive from that nature are the guide rules of law. However different the formulation given to these needs in positive law, according to various times and places or varying degrees of development and culture, their central kernel is always the same, because it is the expression of man’s nature. Those needs are, as it were, the dead point of a pendulum. Positive law swings beyond the dead point, now on one side, now on the other; but whether it likes it or not, the pendulum always returns to the dead point fixed by nature. It is of little consequence whether these needs of nature are called “law,” “ethical norms,” or ‘postulates of nature.” The fact is that they exist; that they have not been invented by man’s caprice; that they are really rooted in the nature which man himself did not fashion; that they are therefore to be found everywhere; and, consequently, all public law and all law of nations finds in our common human nature a clear, solid, and durable foundation.
It follows from this that any kind of extreme juridical positivism cannot be justified in reason. This positivism is expressed in the principle: “The law is whatever is established as such by the legislative power in the national or international community, and nothing but that, quite independently of any fundamental need of reason or nature.” If one urges that principle, there is nothing to prevent a logical or moral contradiction; that unbridled passion, the whim and brutal violence of a tyrant and criminal might become the law of what is right. History, unfortunately, furnishes many examples of this possibility become reality. If, on the contrary, juridical positivism is so understood that, while recognizing fully those fundamental needs of nature, the term “law” is only used for laws formulated by the legislature, then many may consider this use of the word inexact; but, nevertheless, it offers a common basis for the construction of an international law founded on the ontological order.
2. There is an essential difference between the juridical and the physical order of things. In the physical order, nature works automatically; not so in the juridical order, where man’s personal decision must intervene, in conforming his conduct to the order established by law. “Man is the arbiter of each of his personal acts” is a phrase that expresses an ineradicable human conviction. Men will never admit that what is called the autonomy of the will is only a tissue of internal and external forces.
There is much talk today of security measures destined to replace the punishment for the crime or to accompany it, of heredity, of natural dispositions, of education, of the extensive influence of the instincts at work in the depths of the unconscious or subconscious. Although such considerations may lead to useful conclusions, let us not gloss over the plain fact that man is a personal being, endowed with intelligence and free will, who decides finally himself what he will do or not do. This does not mean that he is free from every internal and external influence, from every inclination and attraction; nor does it mean that he has not to struggle to keep the right path, daily to fight a difficult battle against instinctive, and perhaps unhealthy, urges. But it does mean that, despite all the obstacles, the normal man can and must assert his will; and it is the normal man who must serve as the rule for society and law.
Penal law would have no sense if it did not take into consideration this aspect of man, but penal law makes complete sense because this aspect is true. And since this aspect of man, personal and free, is a conviction of humanity, the effort to establish a uniform penal code has a solid basis.
3. A third presupposition of penal justice is the factor of guilt. It is this which ultimately distinguishes justice properly so called from administrative measures of security. By it the penal juridical order is guaranteed against all arbitrariness, and safeguards for the accused are defined and assured.
Penal law is a reaction of the juridical order against the delinquent. It presupposes a causal relationship between the latter and the former. But this causal relationship must be established by a delinquent who is culpable.
The importance of culpability, of its presuppositions and its effects in law, demands, especially on the part of the judge, a profound knowledge of the psychological and juridical process at its origin. Only on this condition will the judge be spared the painful incertitude which weighs on the doctor, who is obliged to make a decision, but who can make no certain diagnosis according to the symptoms of the sickness, because he does not perceive their internal connection.
At the moment of the crime, the delinquent has before his eyes the prohibition imposed by juridical order. He is conscious of it and of the obligation it imposes. But, nevertheless, he decides against his conscience, and to carry out his decision commits the external crime. That is the outline of a culpable violation of the law. By reason of this psychological process the action is attributed to its author as its cause. He is guilty of it, because his decision was conscious; the order violated; and its guardian, the state, demands an account of him; he falls under the penalties fixed by the law and imposed by the judge. The many influences exercised on the acts of intelligence and will, that is to say on the two factors which are the essential constitutive elements of culpability, do not fundamentally alter this process, however great their importance in determining the gravity of the guilt.
The outline sketched above is always valid, because it is taken from the nature of man, and from the nature of a culpable decision. It provides a common basis for international discussions, and may be of use in the formulation of juridical rules to be incorporated in an international agreement.
The deep knowledge of these difficult questions also prevents the science of penal law from digressing into mere casuistry, and, on the other hand, it directs it in the use of that casuistry necessary in practice, and thus justifiable.
If, however, men refuse to base penal law on culpability as an essential element, it will be difficult to create a true penal law and to reach an agreement in international discussions.
4. It remains to say a word about the ultimate meaning of punishment. Most modern theories of penal law explain punishment and justify it in the last resort as a protective measure, that is, a defense of the community against crimes being attempted, and at the same time, as an effort to lead the culprit back to observance of the law. In these theories, punishment may indeed include sanctions in the form of a diminution of certain advantages guaranteed by the law, in order to teach the culprit to live honestly; but they fail to consider expiation of the crime committed, which itself is a sanction on the violation of the law, as the most important function of the punishment.
It may be permitted to a theory, to a juridical school, to national or international penal legislation to define philosophically punishment in the way in which they understand it, in conformity with their juridical system, provided that they respect the considerations developed above concerning the nature of man and the’ essence of guilt.
But from another point of view, and indeed a higher one, one may ask if the modern conception is fully adequate to explain punishment. The protection of the community against crimes and criminals must be ensured, but the final purpose of punishment must be sought on a higher plane.
The essence of the culpable act is the free opposition to a law recognized as binding. It is the rupture and deliberate violation of just order. Once done, it is impossible to recall. Nevertheless, insofar as it is possible to make satisfaction for the order violated, that should be done. For this is a fundamental exigency of “justice” whose role in morality is to maintain the existing equilibrium, if it is just, and to restore the balance, when upset. It demands that by punishment the person responsible be forcibly brought to order. And the fulfillment of this demand proclaims the absolute supremacy of good over evil; right triumphs sovereignly over wrong.
Let us take the last step: In the metaphysical order, the punishment is a consequence of our dependence on the supreme Will, a dependence which is inscribed indelibly on our created nature. If it is ever necessary to repress the revolt of a free being and re-establish the broken order, then it is surely here when the supreme Judge and His justice demand it. The victim of an injustice may freely renounce his claim to reparation, but as far as justice is concerned it is always assured to him.
This more profound understanding of punishment gives no less importance to the function of protection, stressed today, but it goes more to the heart of the matter. For it is concerned, not immediately with protecting the goods ensured by the law, but the very law itself. There is nothing more necessary for the national or international community than respect for the majesty of the law and the salutary thought that the law is also sacred and protected, so that whoever breaks it is punishable and will be punished.
These reflections help to a better appreciation of another age, which some regard as outmoded, which distinguished between medicinal punishment — poenae medicinales -and vindicative punishment-poenae vindicativae. In vindicative punishment the function of expiation is to the fore; the function of protection is comprised in both types of punishment. Canon Law, as you know, still maintains the distinction, which attitude is founded on the convictions already detailed. Only it gives full meaning to the well known word of the Apostle in the Epistle to the Romans: “Non enim sine causa gladium portat; …vindex in iram ei qui malum agit.” (Rom. 13, 4). “It is not for nothing that he bears the Sword: he is God’s minister still, to inflict punishment on the wrong-doer.” Here it is expiation which is brought out.
Finally, it is only the expiatory function which gives the key to the last judgment of the Creator Himself, Who “renders to everyone according to his works,” as both Testaments often repeat (cf. especially Matt. 16, 27: Rom. 2, 6). The function of protection disappears completely in the afterlife. The Omnipotent and All-Knowing Creator can always prevent the repetition of a crime by the interior moral conversion of the delinquent. But the supreme Judge, in His last judgment, applies uniquely the principle of retribution. This, then, must be of great importance.
Whether or not, as We have said, one leaves to theory and practice the duty of defining the role of punishment in the narrower modern sense, or in the other broader one, it is possible for collaboration in either case, and one can look forward to the creation of an international penal code. But do not refuse to consider this ultimate reason for punishment, merely because it does not seem likely to produce immediate practical results.
Our elucidations, gentlemen, have followed the line of contact between law and its metaphysical foundations. We will be happy, if thereby We have contributed something at least to the labors of your Congress for the protection and defense of man against crime and the ravages of injustice.
We will conclude by wishing all success on your efforts to construct a sane international penal code for the advantage of society, of the Church, and of the community of nations.
May the Goodness and Mercy of God Almighty give you as a pledge of it His blessing.
DISCOURSE TO THE CATHOLIC JURISTS OF ITALY
December 5, 1954
ACCEPT, gentlemen, Our greetings of welcome. We extend them to your distinguished assembly with the same sentiments of joy and confidence with which We received you last year [6th December 1953].
The question which We shall examine today was suggested to Us by one of you, the illustrious Professor Carnelutti. It is: the function of punishment, the “redeeming of the criminal through repentance,” a question which We should like to formulate in this manner: Crime and punishment in their reciprocal relationship. We should wish, that is, to indicate in broad outline the path of a man from the state of noncriminality, through the actual crime, to the state of criminal guilt and its punishment (reatus culpae et poenae); and, vice versa, the return from this state, through repentance and expiation, to the state of liberation from the crime and punishment. We shall be able then to see more clearly what is the origin of punishment, what is its nature, what its function, what form it should take in order to lead the criminal to his liberation.
I. — THE PATH TOWARDS CRIME AND PUNISHMENT
It is necessary here to make two preliminary remarks.
The problem of crime and of punishment is, first and foremost, a problem concerned with persons, and this under a twofold aspect. The path towards crime has its beginning in the person acting, in his “Ego.” In the sum of the actions which proceed from the Ego as from a centre of action, there is question here only of those which are based upon a conscious and voluntary determination; that is, acts which the Ego was able to do or not do, those which it does because it has freely determined to do so. This central function of the Ego with regard to itself — even if operating under various influences of a different nature, — is an essential element when there is question of true crime and true punishment.
The criminal act, however, is also always an opposition of one person to another, both when the immediate object of the crime is a thing, as in theft, and when it is a person, as in murder; further, the Ego of the person who becomes a criminal, is directed against higher Authority, and therefore in the end always against the authority of God. In this matter, We who have as Our aim the true problem of crime and punishment properly so -called, prescind from the merely juridical crime and from its consequent penalty.
It is also to be observed that the person, and the function of the person who is the criminal, form a strict unity, which in its turn presents different aspects. Simultaneously, it concerns the psychological, juridical, ethical and religious fields. These aspects can certainly also be considered separately; but in true crime and punishment, they are so closely related among themselves, that only by taking them all together is it possible to have an exact idea concerning the criminal and the question of crime and punishment. It is not even possible, therefore, to treat this problem unilaterally, merely under its juridical aspect.
The path towards crime, therefore, is this: the spirit of a man is found in the following situation: it is faced with the performance or omission of an action, and this performance or omission is presented to it as simply obligatory, as an absolute “ you must,” an unconditional demand to be met by a personal decision. The man refuses to obey this demand: he rejects the good, accepts the evil. When the internal resolution is not terminated within itself, it is followed by the external action. Thus the criminal action is accomplished both internally and externally.
As far as the subjective side of the crime is concerned, in order to judge rightly it is necessary to take into account not only the external act, but also the influences, both internal and external, which have co -operated in the decision of the criminal, such as innate or acquired disposition, impulses or obstructions, impressions from education, incitement from persons or things in the midst of which the person lives, circumstantial factors, and, in a particular way, the habitual and actual intensity of the will-act, the so-called “ criminal urge,” which has contributed to the accomplishment of the criminal act.
Considered in the object affected by it, the criminal action is an arrogant contempt for Authority, which demands the orderly maintenance of what is right and good, and which is the source, the guardian, the defender and the vindicator of order itself. And since all human Authority must be derived ultimately from God, every criminal act is an opposition to God Himself, to His supreme law and sovereign majesty. This religious aspect is inherently and essentially connected with the criminal act.
The object affected by this act is also the legally established community, if and in as far as it place& in danger and violates the order established by the laws. Nevertheless, not every true criminal act, as described above, has the character of a crime against the public law. Public authority must be concerned only with those criminal actions which injure the orderly society as established by law. Hence the rule concerning a juridical crime: No crime where there is no law. But such a violation, if it is otherwise a true criminal act in itself, is also always a violation of the ethical and religious norm. It follows, therefore, that those human laws which are in contradiction to divine laws, cannot form the basis of a true criminal act against the public law.
Connected with the concept of the criminal act, is the concept that the author of the act becomes deserving of punishment (reatus poenae). The problem of punishment bas its beginning, in an individual case, at the moment in which a man becomes a criminal. The punishment is the reaction, required by law and justice, to the crime: they are like a blow and a counter-blow. The order violated by the criminal act demands the restoration and re-establishment of the equilibrium which has been disturbed. It is the proper task of law and justice to guard and preserve the harmony between duty, on the one band, and the law, on the other, and to re-establish this harmony, if it has been injured. The punishment in itself touches not the criminal act, but the author of it, his person, his Ego, which, with conscious determination, has performed the criminal act. Likewise, the punishing does not proceed, as it were, from an abstract juridical ordinance, but from the concrete person invested with legitimate authority. As the criminal act, so also the punishment opposes person to person.
Meaning and Purpose of Punishment.
Punishment properly so-called cannot therefore have any other meaning and purpose than that just mentioned: to bring back again into the order of duty the violator of the law, who had withdrawn from it. This order of duty is necessarily an expression of the order of being, of the order of the true and the good, which alone bas the right of existence, in opposition to error and evil, which stand for that which should not exist. Punishment accomplishes its purpose in its own way, in so far as it compels the criminal, because of the act performed, to suffer, that is, it deprives him of a good and imposes upon him an evil. But in order that this suffering may be a punishment, the causal connection with the crime is essential.
II. — THE STATE OF GUILT AND OF PUNISHMENT
We add that the criminal has brought about, by his act, a state which does not automatically cease when the act itself is completed. He remains the man who bas consciously and deliberately violated a law which binds him (reatus culpae), and simultaneously he is involved in the penalty (reatus poenae). This personal condition endures, both in his relation to the authority on which he depends, or better, the human authority of public law in so far as this has a share in the corresponding penal process, and at all times also, in his relation to the supreme divine authority. Thus there is brought about an enduring state of guilt and punishment, which indicates a definite condition of the guilty party in the eyes of the authority offended, and of this authority with respect to the guilty party (St. Thomas: Sum. Theol. III, q. 69, a. 2, obj . 3 et ad 3).
An attempt has been made — based on the idea that time and space, formally considered, are not simply realities, but instruments or forms of thought — to draw the conclusion that, after the cessation of the sinful action and of the actual punishment, one can no longer speak of any permanent quality truly belonging to them in the real order, and therefore, of any state of guilt or punishment. If this were so, one should have to abandon the principle: “What’s done cannot be undone.” Applied to a spiritual action — such as a criminal act is, of its very nature, — this principle would be based (as is asserted) on a false valuation, and on an erroneous use, of the concept of time. We would be going outside the limits of Our discourse, if We were to treat here of the question of space and time. It will be enough to note that space and time are not simply thought-forms, but have a basis in reality. At any rate, the conclusion which is drawn from them against the existence of a state of guilt, is invalid. Undoubtedly man’s fall into sin takes place on this earth in a definite place and at a definite time, but it is not a quality of that place or that time, and therefore, its cessation is not connected with the cessation of a ‘ here ‘ and a ‘now ‘.
What We have so far explained concerns the essence of the state of guilt and punishment. On the other hand, by virtue of the special prerogative of the higher authority, to which the culprit has refused due obedience and submission, its indignation and disapproval turn not only against the action, but against its author, and against his person on account of the action.
With the act of crime is immediately linked, as was just now indicated, not the punishment itself, but the guiltiness and punishableness of the action. None the less, there is not excluded a penalty which, by virtue of a law, in incurred automatically at the moment of the criminal action. In Canon Law are recognised penalties (“latae sententiae”) liable to be incurred by the very fact of committing a sin. In civil law, such a penalty is rare, nay, in some legal systems, unknown . Always, moreover, this automatic incurring of a penalty supposes real and serious guilt.
Presuppositions of Every Penal Sentence
Consequently, it is customary for the penalty to be imposed by a competent authority. That presupposes: a penal law actually in force, a legal person invested with authority to punish, and in him, certainty regarding the act to be punished, as much from the objective standpoint, that is to say, concerning the actual commission of the crime contemplated by the law, as from the subjective standpoint, that is, from a consideration of the culpability of the guilty one, its gravity and extension.
This knowledge, necessary for pronouncing a penal sentence, is, before the court of God, the Supreme Judge, perfectly clear and infallible, and to have called attention to it cannot be without interest to the jurist. God was present to the man in the internal resolve, and in the external execution of the criminal act, having all fully within His gaze down to the last detail; all is before Him now, as in the moment of the act. But this knowledge in absolute fulness and sovereign certainty, at every instant of life, and over every human act, is proper to God alone. Because of this, there belongs to God alone the final judgment on the value of a man, and the decision on his ultimate fate. He pronounces the judgment as He finds the man at the moment He calls him to eternity. Yet a n infallible judgment of God exists also during life on earth, and not only taken as a whole, but over every sinful act, together with the corresponding penalty; yet, in spite of the ever ready divine disposition to forgiveness and remission, in some cases He carries it into effect during the present life of the man.
Moral Certainty in Human Judgments.
The human judge, on the other hand, since he does not possess the omnipresence and omniscience of God, has the duty of forming for himself, before issuing the judicial sentence, a moral certainty, that is, one which excludes every reasonable and serious doubt about the external fact and the internal guilt. But he does not have immediate insight into the interior dispositions of the accused at the very moment of the crime; rather, in most cases the judge is not in a position to reconstruct them with absolute clarity from the arguments offered as proof, nor, often enough, from the very confession of the delinquent. But this difficulty should not be exaggerated, as though it were ordinarily impossible for a human judge to attain sufficient certainty, and therefore a solid foundation for a sentence. According to the cases, the judge will not fail to consult renowned specialists on the capacity and responsibility of the presumed criminal, and to take into consideration the findings of the modern sciences of psychology, psychiatry and characterology. If, despite all these precautions, there still remains a grave and serious doubt, no conscientious judge will proceed to pronounce a sentence of condemnation, all the more so when there is question of an irrevocable punishment, such as the death penalty.
In most crimes, external behaviour is already sufficient manifestation of the internal motive which was responsible for the crime. Therefore, ordinarily, one can, and at times one should, deduce a substantially sound conclusion from the external; otherwise juridical actions would be rendered impossible for mankind. On the other hand, one should not forget that no human sentence finally and definitively settles the fate of a man, but only the judgment of God, both for single acts and for those of a lifetime. Consequently, in every case where human judges have erred, the Supreme Judge will re-establish equilibrium, first of all, immediately after death with the definitive judgment on the whole life of a man, and then later and more fully in the final and universal judgment before all men. This is not to be understood as though it dispenses a judge from conscientious and exact efforts in ascertaining the facts. Still, there is something magnificent in the realization that there will be a final equation of guilt and punishment which will be absolutely perfect.
Whoever has the duty of guarding the accused person in protective custody, should not fail to bear in mind the painful burden which the investigation itself inflicts upon the prisoner, even when those methods of investigation are not being employed which cannot be justified in any way. Ordinarily, these sufferings are not taken into account when the penalty is finally inflicted, a consideration which would be difficult to realize. However, one should not lose sight of them.
In external juridical matters, the sentence of the court is definitive for all that concerns guilt and punishment.
Some Proposals of Reform.
In your sessions, gentlemen, there was manifested the desire that by means of legislation some relaxation be introduced of the obligation which binds the judge to the articles of the penal code, not of course in the way the duty of the praetor was interpreted by Roman Law, “ adjuvandi, supplendi vel corrigendi iuris civilis gratia” (“to help, supplement, or correct civil law”), but in the sense of a freer evaluation of the objective facts over and above the general juridical limits se t by legislative authority. Thus, even in penal law, a kind of “analogia iuris” would be applicable, and the discretional power of the judge would be extended beyond the limits hitherto accepted as valid. It is believed that in such a way there would result a notable simplification of penal laws and a considerable lessening of the number of particular crimes, and, at the same time, it would help to make people understand better what exactly the State considers deserving of punishment, and for what reasons.
For this proposition a certain foundation can surely be admitted. In any case, the ends which this proposition has in view, namely, the simplification of the norms of law, the prominence given not only to strict formal law but also to equity and spontaneous good judgment, the better adaptation of penal law to popular sentiment: these ends, We say, are not open to objection. The difficulty would arise not so much on the theoretical side as from the form of its realization, which, on the one hand, should preserve the guarantees of the existing order, and, on the other hand, take into account the new needs and reasonable desires of reform. Canon Law offers examples in this sense, as is evident from canons 2220–2223 of the Code of Canon Law.
Variety and Efficacy of Penalties.
In what concerns the various kinds of penalties (penalties concerning honour [juridical capacity], inheritance, personal freedom , body, and life, [bodily punishment is not provided for in Italian Law] ), in Our explanation We will limit Our remarks concerning them to the nature and purpose of punishment. Since, however, as We have already noted, jurists do not hold one opinion concerning the meaning and purpose of punishment, it follows that their views of various punishments are also different.
Up to a certain point it may be true that imprisonment and isolation, properly applied, is the penalty most likely to effect a return of the criminal to right order and social life. But it does not follow that it is the only just and effective one. What We said in Our discourse on international penal law, on 3rd October, 1953, referring to the theory of retribution (cf. Discorsi e Radiomessaggi, Vol. XV, pp. 351, 353), is to the point here. Many, though not all, reject vindictive punishment, even if it is proposed to be accompanied by medicinal penalties. We then declared that it would not be just to reject completely, and as a matter of principle, the function of vindictive punishment. As long as man is on earth, such punishment can and should help toward his definitive rehabilitation, provided man himself does not raise barriers to its efficacy, which, indeed, is in no way opposed to the purpose of righting and restoring harmony. This, as We already pointed out, is an essential element of punishment.
Execution of Penalties.
The natural complement of inflicting punishment is that it be carried out on the understanding that it is the effective privation of a good, or the positive imposition of an evil, established by competent Authority as a reaction to the criminal action. It is a weight placed to restore balance in the disturbed juridical order, and not aimed immediately at the fault as such. The criminal action has revealed in the guilty person an element that clashes with the common good and with well-ordered life with others. Such an element must be removed from the culprit. The process of removing it may be compared with the intervention of a doctor in the body, an intervention which may be painful, especially when the cause of sickness, and not the symptoms, must be dealt with. The culprit’s own good, and, perhaps more so, that of the community, demands that the ailing member become sound again. The meting out of punishment, however, no less than the healing of the sick, demands a clear diagnosis of causes, not merely of symptoms, a therapy adapted to the ailment, a cautious prognosis, and a suitable prophylaxis.
Reactions of the Condemned.
The meaning and purpose of the punishment, and the intention of the punishing authority, which is usually in agreement with that purpose, indicate the attitude the culprit should have; it is to acknowledge the evil which provoked the penalty; of aversion from, and repudiation of, the evil deed itself; of repentance, expiation and purification, and purpose of future amendment. That is the path the condemned man should follow. The problem, however, is, which he will really take? Turning Our attention to such a question, it may be helpful to consider the suffering caused by the punishment in its various aspects: psychological, juridical, moral, and religious, though normally these various aspects are in the concrete closely intertwined.
… in the Psychological Aspect.
Psychologically, nature spontaneously reacts against the physical evil of the penalty, the reaction being stronger in proportion to the suffering imposed on human nature as such, or on the individual temperament. Along with this, there is a fixing, likewise spontaneous, of the culprit’s attention on the criminal action which caused his punishment, and whose connection is now vividly before his mind, or at least is now uppermost in his conscience.
Following such more or Jess involuntary attitudes, there appears the conscious and willed reaction of the Ego, the centre and source of all personal actions. This higher reaction can be a voluntary, positive acceptance, as is shown by the good thief on the cross: “Digna factis recipimus” — “We receive what our deeds deserve “ (Luke xxiii, 41). It may be mere passive resignation, or, at times. a deep bitterness, a total interior collapse. Again, it may be a proud resistance. which at times becomes a hardening in evil. Finally, it may be a complete revolt, savage but powerless. Such psychological reactions take different forms, depending on whether there is question of a punishment, of long or short duration, or short in time maybe, but surpassing in height and depth all time-measure, for example, the pain of death.
… in the Juridical Sphere.
Juridically, execution of the punishment implies the valid, effective action of the higher and stronger power of the juridical community (or rather, of the one possessing authority in this community) on the Jawbreaker, who, obstinately opposed to the law, has culpably violated the established juridical order, and now is forced to submit to the prescriptions of that order, for the greater good of the community and of the criminal himself. Thus the idea and necessity of penal law is clear.
On the other hand, justice demands that in carrying out the provisions of penal law, any increase of those punishments provided for the case, as also any arbitrary harshness, annoyance or provocation, be avoided. Higher Authority must see to the carrying out of the punishment, and give it a form which will correspond to its purpose, not in an unyielding fulfilment of minute prescriptions, but in adapting it, so far as possible, to the person to be punished. Indeed, the gravity and dignity of the power to punish, and its exercise, naturally indicate that the public authority view, as its main duty, contact with the person of the guilty one. Judgment on him must be made, therefore. according to special circumstances, if the functioning of that office is to be fully cared for through the proper channels. Very often, if not always, one aspect of punishment must be entrusted to others, especially the real and effective care of souls.
Some have proposed that it would be well to establish a religious congregation or a secular institute which would care more extensively for the psychological assistance of prisoners. Undoubtedly. nuns have long been bringing the warmth and good influence of Christian Charity to women’s prisons; for Us this is a good opportunity to express to them Our gratitude. Still, the above-mentioned proposal seems worthy of deep study, and We express the hope that a like foundation, no less than those religious and ecclesiastical associations already active in houses of detention, will give full play to the energies released by the Christian faith; We hope, too, that all the solid results produced by investigation and experience in the field of psychology, psychiatry, pedagogy and sociology, will be used to the advantage of the imprisoned. This naturally presupposes a thorough professional training in those called to such work.
No one who is in any way familiar with the actual application of punishment will nurse utopian dreams of great success. The good will of the prisoner must match any outside influence, but that cannot be had by force. May divine grace arouse and direct that good will!
… from the Moral Point of View.
The moral aspect of the carrying out of punishment and the sufferings they effect is in relation to the purpose and principles which should determine the dispositions of the condemned.
To suffer in this life means practically a turning of the soul within itself; it is a path which drives one from the superficial to deep within oneself. Considered in that light, suffering has great moral value. Presupposing a right intention, its free acceptance is a priceless act. “Patientia opus perfectum habet,” writes St. James (i, 4). That is true also of the sufferings caused by punishment, which can bring progress to one’s interior life. By its nature it is a reparation and a restoration through and in the guilty person, and willed by him — of the culpably violated social order. The essence of the return to good consists more exactly in breaking away from the fault than in the free acceptance of suffering. Suffering, however, can lead to this break, and turning away from one’s wrongdoing can, in its turn, be of great moral value, and facilitate and elevate its moral effectiveness. Thus suffering can reach moral heroism, heroic patience, and expiation.
In the area of moral reaction, however, contrary manifestations are not lacking. Often the moral value of punishment is not even recognized; often it is consciously and deliberately rejected. The criminal will neither recognize nor confess his guilt, will in no way submit to good, wills no expiation or repentance for his own crimes.
And now a few words on the religious aspect of the suffering which results from punishment.
… the Religious Element.
Every moral transgression of man, even if materially committed only in the sphere of legitimate human laws and then punished by men according to positive human law, is always a sin before God, and calls down upon itself from God a punitive judgment. Not to take this into account is contrary to the interest of public authority. Sacred Scripture (Romans xiii , 2–4) teaches that human authority, within its own limits, is, when there is question of inflicting punishment, nothing else than the minister of divine justice. “For he is God’s minister: an avenger to execute wrath upon him that doth evil.”
This religious element in the meting out of punishment finds its expression and realization in the person of the guilty one, in so far as he humbles himself under the hand of God, Who is punishing him through the instrumentality of men; thus he is accepting his sufferings from God, offering them to God as a partial payment of the debt which he has contracted before God. Accepted in this way, punishment becomes for the guilty person a source of interior purification on this earth, of complete conversion, of resolution for the future, a bulwark against possible relapse. Suffering thus accepted with faith, repentance and love. is sanctified by the pains of Christ and supported by His grace. This religious and holy meaning of suffering due to punishment is impressed upon us by the words which the good thief addressed to his crucified companion : “Digna factis recipimus” — “We receive the due reward s of our deeds “, and by his prayer to the dying Redeemer: “Domine, memento…” — “Lord, remember me when thou shalt come into thy kingdom”: a prayer which, when weighed upon the scales of God, brought to the repentant sinner the assurance of the Saviour: “Hodie mecum eris in paradiso” — “This day thou shalt be with me in paradise” (Luke xxiii, 41–43); the first plenary indulgence, as it were, granted by Christ Himself.
May all who have fallen under the blows of human justice, suffer the punishment inflicted upon them not simply as under duress, not without God and without Christ, not in revolt against God, not spiritually shattered by anguish; but may it open for them the way which leads to holiness.
ADDRESS TO THE UNION OF ITALIAN CATHOLIC JURISTS
February 5, 1955
It remains now to speak of the final part of the path which We wished to point out to you, that is, the return from the state of guilt and punishment to that of deliverance.
Deliverance from guilt and from punishment are not necessarily identified, either in concept or in reality. Apart from the fact that. in the sight of God, the remission of eternal punishment is always connected with the remission of grave guilt — guilt may be remitted without necessarily implying the extinguishing of the penalty. On the other hand, the penalty may have been paid without the guilt having ceased to exist in the inner being of the culprit.
Now, the return to the juridical and ethical order consists essentially in the deliverance from guilt, and not from punishment.
(a) DELIVERANCE FROM GUILT
In the exposition of the first part of this path, We pointed out the internal and external character of the guilty act, that is, in relation to its author, as also in its relations to higher authority, which is, in the last analysis, the authority of God Himself, Whose majesty, justice and holiness are slighted and offended in every culpable act.
In What does Deliverance from Guilt consist?
Deliverance from guilt must therefore reintegrate the relations disturbed by the culpable act. If we are dealing with a simple, real debt, that is, one that is concerned with purely material considerations, it may be fully paid by the handing over of the thing required, without the necessity of any personal contact with the other party. If, however, there is question of a personal offence (either by itself or connected with a real debt), then the culprit is bound to an obligation, in the strict sense, to the person of the creditor. It is from this strict obligation that he must be released. And because, as We have already said, this obligation has a psychological, juridical, moral, and religious aspect, so his deliverance must have a like aspect.
Guilt, however, in its internal element, also implies in the culprit a state of enslavement and of bondage on his part to the object to which he has given himself in the performance of the culpable act; that is, in substance, an enslavement to a pseudo-Ego whose tendencies, impulses and ends are in man a caricature of the genuine Ego, intended by the Creator and by nature only for the good and the true. This contradicts those norms of the right path according to whose direction man, made in the image of God, should act and form himself. From this enslavement also must there be effected a psychological, juridical, moral, and religious deliverance.
In human law, we may speak of a kind of deliverance from guilt, when the public authority no longer proceeds against the culpable act ; for example, even without regard to the actual internal dispositions of the culprit, by positive remission of the guilt on the part of authority, or because there has expired the period established by the law, within which exclusively the same authority intends, under certain conditions, to bring before its tribunal, and to pass judgment upon, the violation of the law that has taken place. However, this way does not constitute an interior conversion, a catharsis, a release of the Ego from its interior slavery, from its will to evil and to law-breaking. Now, it is only to this deliverance from guilt in its proper meaning, to this catharsis (that is, change of mental attitude), that We would wish to draw attention here.
Psychologically considered, the liberation from guilt is the abandonment and retraction of the perverse will freely and consciously placed by the Ego in the culpable act, and the renewed intention to will what is right and good. This change of will presupposes a return into oneself, and hence an understanding of the evil and culpability of the resolution formerly taken against the good recognized as obligatory. There is, together with such understanding, the reprobation of the evil done, repentance as directly willed sorrow, deliberate regret in the soul for the evil perpetrated because it was wicked, contrary to law, and, in fine, contrary to God. In this catharsis of the inner being, there is also accomplished, and included, a withdrawing from the false good to which man had turned in his guilty act. The culprit begins to submit himself to the order of justice and right, in obedience to its author and guardian, against whom he had rebelled.
This leads psychologically to the final step. Since the culpable act, as already mentioned, is not the offence directed against an abstract norm of law, but is, in substance, a stand against the person of the commanding or prohibiting authority, complete conversion tends, through psychological necessity in one form or another, towards the person of the offended authority with the explicit or implicit sorrowful confession of the fault, and with interior petition for remission and pardon. Holy Scripture gives us brief and classic examples of such repentance, like the words of the publican in the Temple: “Deus, propitius esto mihi peccatori” — “O God, be merciful to me the sinner!” (Luke xviii, 13), or the words of the prodigal son: “Pater, peccavi” — “Father, I have sinned” (Luke xv, 21).
In spite of this, when considered under the purely psychological aspect, the perverse will expressed in the culpable act can end in another way without attaining release from guilt. The culprit no longer thinks of his act, but he has not actually retracted it; it has simply ceased to weigh upon his conscience. Now, it should be clearly stated that such a psychological process does not constitute a release from guilt, just a falling asleep in the evening does not signify or obtain the removal, much less the suppression, of the evil committed during the day. Nowadays, some will perhaps say that the guilt has been submerged in the subconscious or the unconscious. But it is still there.
Nor would any better result be obtained with the attempt to suppress the psychological awareness of guilt by means of auto-suggestion or external suggestion, or even by means of clinical psychotherapy, or psychoanalysis. A real, free, guilty will cannot be psychologically corrected or suppressed by insinuating the persuasion that it has never existed. We have indicated the deplorable consequences of a like treatment of the question of guilt, in the discourse addressed to the Fifth International Congress of Psychotherapy and Clinical Psychology, 15th April, 1953 (cf. Discorsi e Radiomessaggi, Vol. XV, 67 et seq.).
A final observation must yet be made on this question of psychological release from guilt. A single, fully conscious and free act can contain all the psychic elements of a true conversion; but its depth, firmness and extent can present defects which, if not essential, are at least appreciable. A profound, extended, and lasting deliverance from guilt is often a lengthy process, which only gradually reaches maturity, particularly if the culpable act has been the fruit of an habitual disposition of the will. The psychology of relapses offers more than sufficient material for proof on this point, and the supporters of the purifying, educative, and strengthening function of a somewhat lengthy imprisonment find in these experiences a confirmation of their theory.
Juridical deliverance from guilt, as distinct from the psychological conversion that is accomplished in the intimate will of the culprit, is directed essentially to the higher authority, whose requirements for observance of established norms have been slighted or violated. Private violations of legal rights, if they have occurred in good faith or otherwise do not prejudice the common good, are settled privately between the parties or by means of a civil action. They are not ordinarily the object of penal law.
In the analysis of the culpable act, We have already pointed out that it constitutes the withdrawal and the negation of due subordination, due service, due devotion, due respect and homage; that it is objectively an offence against the loftiness and majesty of the law, or rather of the law’s author, guardian. judge, and vindicator. The demands of justice, and hence juridical deliverance from guilt, require that as much service, subordination, devotion, homage and honour be restored to authority, as were taken from that authority by the guilty act.
This satisfaction may be performed freely; it may also, in the suffering endured because of the penalty inflicted, be to a certain degree forced; it may at one and the same time be forced and free. Law, in modern nations, does not attach much importance to voluntary reparation. It is content to have the will of the culprit, by means of the penalty suffered, submit to the powerful will of public authority, and to re-educate his will in this way to work, to social relationship, to right action. It is not to be denied that such a method of procedure can, by reason of immanent psychological laws, lead to an interior reform, and hence to an interior liberation from guilt. But that this must happen, or regularly does happen, is still to be demonstrated. In any event, not to take into consideration, as a matter of principle, the will of the culprit to give satisfaction in so far as sound juridical sense and violated justice require, points to a deficiency and a gap, the bridging of which is earnestly demanded by the interests of doctrine, and of fidelity to the fundamental principles of penal law.
However, juridical release from guilt comprises not only the will to perform the required reparation, but the actual reparation itself. Here, science and the circumstances of concrete life are frequently confronted by a difficult question: what should be the rule in the event of moral or physical inability to perform such reparation? Must we have recourse to some manner of compensation or substitution, or may the exigencies of violated law be left without reparation? We have already indicated that man, by means of a culpable act committed with full responsibility, is capable of offending or of destroying certain goods and juridical obligations, but, after the fact, he is often no longer in a position to provide adequate satisfaction. This is true in the instance of murder, of privation of sight, of mutilation, of complete sexual violation, of adultery, of definitive destruction of another’s good name, of the declaration of an unjust war, of the betrayal of State secrets, of certain forms of lèse-majesté, and of other like guilt acts. The law of retaliation would inflict a proportionate evil on the culprit. However, by this alone. the one injured in his rights would not receive reparation, nor have his rights restored. But, prescinding from the fact that adequate indemnity is not impossible in all cases, it should be noted that judgment on the guilt regards not so much the damaged good of the other party, but principally the person of the culprit and his perverse will exercised to his own advantage. In opposition to this, is the offering or reparation made by the culprit at his own expense, from his personal being, property and ability, for the benefit of another, that is, in every case, of the violated law, namely. of the superior authority. Thus, active reparation which includes the interior conversion of the will, is for the culprit who at his own expense performs the required satisfaction, the second of the two above-indicated elements which brings about release from guilt. The same cannot be said of purely passive reparation, when the culprit is forced to bow beneath the suffering that this reparation implies. This purely passive satisfaction, from which any element of voluntary and repentant will is lacking, is thus deprived of the essential element of release from guilt. Consequently, the culprit remains in his guilty condition.
We have many times pointed out that every grave guilty act is, in the last analysis, an offence before God, Who has an absolute, because divine, right to obedience and submission, to service and praise, and Who as Author, Guardian, Judge, and Avenger of the juridical order, makes known to the culprit His demands with that unconditional absoluteness which is proper to the intimate manifestations of conscience. In the guilty resolve of the Ego, man slights God Who thus reveals Himself, he leaves aside the infinite good, the absolute majesty, and in this way places himself by his action above God. But if man repents and returns to his proper subordination before the majesty of God, if, in conscious and complete surrender of his Ego to the supreme infinite good, he detaches himself from his culpable act in its deepest roots in order once again to be free in good and in his God, he nevertheless finds it impossible to make reparation by his own powers (that is, from the capacity of his own being, will and potency) in any fashion proportionate to that which he has committed in the sight of God by his act. He has offended and slighted an absolutely infinite good, an absolutely unlimited right, a supreme majesty. In the gravity of his fault there thus intervenes this absolute infinity, while anything that man might offer or actuate is essentially, intensively and extensively, finite. Even were such reparation to endure until the end of time, it can never arrive at an equality — tantum quantum — between the exigency of God and the offering or reparation of man. God bas bridged this abyss; He has put into the hands of finite man an infinite price; He has accepted as an offering of reparation for guilty man the ransom offered by Christ, which is superabundant, because it is of infinite value in submission, honour, and in giving glory, by reason of its being the fruit of the hypostatic union. As long as time will endure, this ransom remits the guilt, before God, of him who repents, through the merits of Jesus Christ.
Let it not be said that these theological and religious considerations lie outside the field and the interests of science and juridical practice. Doubtless a sharp distinction of competencies is an advantage to life and to any true science; but in this self-limitation, one must not reach the point of denying or ignoring explicitly inseparable connections which, by intrinsic necessity, are manifested on every s1de. In every real offence, in whatever material field it may have taken place, there IS contained a relation with the ultimate requirement of all law and of all order. It is a characteristic or prerogative of the world of law that there is nothing in it which, in its fundamental structure, has been created without this supreme requirement, or which, in its final analysis, can be made intelligible without this transcendent relation. In this, there is no debasement, but rather an elevation of law and of juridical science, for which total laicization is an impoverishment, not an enrichment. The ancient Romans united law and right (ius ac fas), notwithstanding the difference in concepts, and they always conceived them as related to the deity. If now modern depth-psychology is right, there is in the innate dynamisms of the subconscious and the unconscious a tendency which draws towards the transcendent and makes the essence of the soul gravitate towards God. The analysis of the guilt-process and of deliverance from guilt reveals the same tendency towards the transcendent. This analysis brings forward considerations and aspects which the science and practice of penal law do not, of course, have to treat of directly, but about which they should have sufficient knowledge, in order that others may make them useful for the purpose of executing the penalty, and so apply them to the advantage of the culprit.
Moral deliverance from guilt coincides substantially, for the most part, with what We have already said concerning psychological and juridical deliverance. It is the reprobation and withdrawal of the positive contempt and violation of the moral order caused by the culpable act; it is the conscious and voluntary return of the penitent culprit to submission and conformity with the ethical order and what it must, of obligation, demand. There are comprised in these positive acts the endeavour and the offering of the guilty one to satisfy the just demands of violated law, of the ethical order, or better, of the Author, Lord, Guardian, and Vindicator of that order. And there appears the conscious will and resolution of the culprit to be faithful in future to the precepts of what is right and good. In its essential parts, then, this deliverance consists in that interior disposition which has been indicated in the Statement presented by you as the purpose and the fruit of the right fulfilment of the penalty, even though it is here considered and circumscribed under a slightly different point of view.
Finally, by religious deliverance, there is understood release from that interior guilt which burdens and binds the person of the culprit in, the sight of God, that is to say, before the supreme and ultimate command and essential of all law and of every moral obligation, Who, being infinite, covers and protects His will and His law, which bas its origin either immediately in Himself, or mediately in some legitimate human authority within the area of its own competence. How man can free himself or be freed from his offence against God, has been already sufficiently explained in the second point, concerning the juridical aspect. But if this final religious deliverance is not manifested to the culprit, or at least if the way to such is not pointed out or made smooth — if only by means of a long and severe penalty, — then in such a case very little, (one might say, nothing), is offered to guilty “man” in his punishment, however much one may talk of psychic cure, of re-education, of social formation of the person, of emancipation from aberrations and from enslavement to himself. Doubtless these expressions mean something that is good and important; but for all that, man remains in his guilt before the supreme necessity, upon which his final destiny depends. This necessity can wait, and often does wait for a long time, but in the end it consigns the culprit to the guilt from which he is unwilling to cease, and to the consequences of that guilt. It is indeed sorrowful to have to say about a man: “bonum erat ei, si natus non fuisset homo ille” “It were better for that man if he had never been born “ (St. Matthew xxvi, 24). Therefore, if someone or something can contribute towards warding off such an evil, even though it be penal law or the execution of a lawful penalty, no effort should be spared. All the more, since God, during this life, is always most willing to bring about a reconciliation. He urges man to accomplish internally the psychic withdrawal from his senseless act; He offers to welcome him once again, if be repents, into His friendship and His love. May human penal law, in its judgments and in the execution of those judgments, never forget the man in the culprit, and never omit to strengthen him and assist him to return to God!
(b) DELIVERANCE FROM THE PENALTY
The return from the state of guilt and of punishment necessarily includes release not only from the guilt. but also from the penalty; only thus is there obtained that “restitutio in integrum,” as it were, a restitution to the original state or condition of non-culpability, and hence of non-penalty.
Eternal Punishment in the Divine Law.
Recent facts and statements suggest to Us at this point a brief declaration. Not every penalty that is incurred bears within itself its own remission. Revelation, and the teaching authority of the Church establish clearly that, after the end of this life on earth, those who are burdened with grave guilt will receive from the Most High God a judgment and an execution of penalty from which there is no release or condonation. God could, in the next life, also remit such a punishment; everything depends. on His freewill; but He has never granted it, and will never do so. There is no point in discussing here whether this fact can be established with certainty by the force of reason alone — as some assert, — while others consider it doubtful. But both opinions contain, in their arguments based on reason, considerations which indicate that such a divine disposition is in no way contrary to any of God’s attributes: neither to His justice or His wisdom, neither to His mercy or His goodness. Furthermore, these considerations show that the divine disposition is by no means opposed to the human nature bestowed by the same Creator, with its absolute metaphysical purpose directed to God, with the impulse of the human will towards God, with the physical freedom of the will rooted and always abiding in created man. All these reflections may perhaps leave in man, when he makes his judgments relying on his own reason alone, a final question, not so much about the possibility, but rather about the reality of such an inflexible decree of the supreme Judge. Hence it will not arouse too much astonishment if a noted theologian could write, at the beginning of the seventeenth century: “There are four mysteries of our most holy Faith which are most difficult for the human mind to believe: the mystery of the Trinity, of the Incarnation, of the Eucharist, and of eternal punishment” (Lessius, De Perfectionibus moribusque divinis, lib. XIII, cap. xxv). Nevertheless, the fact of the unchangeableness and the eternity of that judgment of reprobation and of its fulfilment is beyond dispute. The discussions which have arisen because of a recently published book (Giovanni Papini, II Diavolo — Vallechi, 1954) frequently portray a grave lack of understanding of Catholic doctrine, and they are founded on premises that are either false or falsely understood. In the present instance, the supreme Legislator, in the use of His sovereign and absolute power, has established the unending validity of His judgment and of its execution. Hence this limitless duration is the law now in force.
Various Forms of Cessation of Punishment in Human Law.
But let us now turn to the field of human law, which is the principal object of the present discourse. As We have already indicated, release from guilt and release from punishment do not always coincide. The guilt may come to an end and the penalty continue, and then, on the other hand, the guilt may continue in force while the penalty terminates. There are various forms of cessation of punishment. It is first of all clear that such cessation is reached automatically at the moment in which the penalty inflicted has been paid, or when the period of time originally set down has been passed, or else when its continuance (sometimes its very execution) was linked with a condition, either resolutive or suspensive, and this condition has been sufficiently fulfilled.
The Remission of the Penalty.
Remission is another form of cessation of the penalty, by means of an act of the competent higher authority. This may take the form of a favour, an indult or an amnesty, which is somewhat analogous, in the field of religion, to the “indulgence.” The power to issue such acts of clemency does not rest with the judge who has pronounced the sentence of condemnation, applying to the individual case the penalty established in law. Per se, it resides with the power that judges and punishes in its own name and in virtue of its own law. Hence the right to remit the penalty avails ordinarily in the life of the State as something reserved to the supreme authority. That authority can exercise this right by means of a general decree or by one concerned with an individual case.
Certain favours or mitigations in the execution of the penalty, which leave its substance unchanged, but which are granted to the culprit by reason of good conduct or for other motives, are not included under the heading of remission or condonation. Besides, remission of the penalty in the proper sense is applied both to “ medicinal penalties “ and also to “ vindictive penalties,” where these latter are admitted.
The final stage of man’s road through guilt and punishment leads anew to the problem, already mentioned several times, of the highest aim or object of the penalty, and particularly about the sense, or according to some, the non-sense, of a purely vindictive penalty.
Medicinal and Vindictive Penalties.
In Our discourse of 3rd October, 1953, to the Sixth International Congress of Penal Law (Discorsi e Radiomessaggi, Vol. XV, p. 352), and also on the present occasion (Osservatore Romano, 6th -7th December, 1954), we called attention to the fact that many, perhaps the majority, of civil jurists reject vindictive punishment; We noted, however, that perhaps the considerations and arguments adduced as proof were being given a greater importance and force than they have in fact. We also pointed out that the Church in her theory and practice has maintained this double type of penalty (medicinal and vindictive), and that this is more in agreement with what the sources of revelation and traditional doctrine teach regarding the coercive power of legitimate human authority. It is not a sufficient reply to this assertion to say that the aforementioned sources contain only thoughts which correspond to the historic circumstances and to the culture of the time, and that a general and abiding validity cannot therefore be attributed to them. The reason is that the words of the sources and of the living teaching power do not refer to the specific content of individual juridical prescriptions or rules of action (cf. particularly Ep. to the Romans, xiii, 4), but rather to the essential foundation itself of penal power and of its immanent finality . This in turn is as little determined by the conditions of time and culture as the nature of man and the human society decreed by nature itself. But, whatever the attitude of positive human law on this problem, it is sufficient for Our present purpose to make clear that in any total or partial remission of punishment, the vindictive penalties (no less than the medicinal) can, and even should, be taken into consideration.
Arbitrariness cannot prevail in the application of condonation. The good of the culprit, no less than that of the juridical community whose law he bas culpably violated, must serve as a norm. Above both of these are the respect and excellence of the order established according to what is good and righteous. This norm requires, among other things, that, as is the case in the normal relations of men, one with another, so also in the application of penal power, there be considered not only strict law and justice, but also equity, goodness, and mercy. Otherwise there is danger that the “summum ius” [“the highest law”] be converted into “summa iniuria” [“the gravest injury”]. It is precisely this reflection which gives rise to the thought that, in medicinal penalties, and also, within certain limits, in vindictive penalties, a remission of the punishment should be taken under consideration whenever there is moral certainty that the inherent purpose of the penalty has been obtained, that is, the true interior conversion of the guilty person, and a serious guarantee of its lasting character. The regulations of Canon Law in this matter (cf. Canon 2248, § § 1 and 2, and Canon 2242, § 3, of the Code of Canon Law) might serve as a model. These require, on the one hand, proof of the actual change of mental attitude in the culprit, and, on the other, do not provide for any automatic condonation, but rather make it depend on a positive juridical act of the competent authority. In the memorial presented by you, it is stated that civil penal law on this point apparently makes desirable a new development and a more elastic adaptation to just modern exigencies. This proposal may be good, although the requirements of civil penal law under various aspects differ from ecclesiastical penal law. In any event, the carrying out of any reform seems to require new theoretical clarifications and well-founded practical experimentation.
Interior Element of Deliverance from Punishment.
Along with the legal and technical aspect of deliverance from punishment, the same memorial also mentions another, completely different, but very real influence, which is exerted upon the culprit, and which, being a more profound, intimate release from punishment, cannot be passed over in silence. Naturally it is less pleasing to professional jurists as such, although acceptable to them as ‘ men ‘ and ‘Christians’; it indicates an essential deepening or, one may prefer to say, a sublimation or ‘Christianization’ of the entire problem of the execution of penalties.
The Example of Innocent Persons Condemned.
Punishment is looked upon, by its very nature, as an evil imposed on man against his will; hence it creates of itself a spontaneous defensive attitude on the part of the interior man. He feels himself robbed of the free disposition of himself and subjected to a n extraneous will. Similar evils, but arising from other sources, frequently affect man, or he may even choose them by his own free election. As soon as spontaneous opposition to the suffering no longer exists, its oppressive and humiliating aspect disappears or is substantially diminished, even though the sensitive and painful element remains. This We have already had occasion to point out in Part II of Our present exposition. Very many people, even though innocent, are to-day thus oppressed and suffering; they suffer physically and morally in prisons and penitentiaries, in concentration camps, in places of forced labour, in mines, in quarries, to which they have been relegated by political passion or the arbitrary whim of totalitarian powers. They suffer all the miseries and all the sorrows — and sometimes even more — that can be inflicted upon true culprits
according to law and justice. Those who, through no fault of their own, suffer such evils, are certainly not able to escape externally the pressure of force, but they can interiorly rise above all such things, sustained perhaps by naturally good moral motives, but much more easily and effectively by religious considerations, by the certainty that always and everywhere they depend on Divine Providence, which allows no person or thing to be taken from its grasp, and which , beyond the fleeting period of man’s earthly life, possesses an eternity and an almighty power to set aright whatever has been unjustly suffered. It has a power to equalize again all things disarranged and hidden, to crush and punish all human tyranny. To the eyes of the Christian, there is ever present Our Lord, Who in His Passion experienced all the depths of human suffering and tasted all its bitterness, and, in obedience to the Father, for love of Him and out of loving compassion for men, willingly took upon Himself sorrow and ignominy, the cross and death. Strengthened by the example of the God-man, many of these innocent victims find in their suffering interior freedom and peace, and attain an interior deliverance from sorrow, even while the external affliction endures, through the way of faith, of love and of grace.
Charitable Work of Assistance to the Condemned.
Those who suffer through their own fault and feel themselves slaves of punishment may also attain the same end, and by the very same way. We would wish to recall here what We have already said when speaking of the execution of punishment, concerning the spiritual circumstances of the person condemned to prison. Here We desire to consider how one can and should assist him to attain an interior victory and, consequently, an interior release from the evil of punishment. By faith and love and grace, clearness of vision and light can be given to his spirit, warmth and substance to his courage, strength and support to his weakness. Unquestionably, the convicted person could himself bring to maturity and completion such an elevation. Few, however, abandoned to their own devices, will be able to do so. They therefore need from others advice, assistance, sympathy, encouragement and comfort. But the one who undertakes such a task must draw forth from his own convictions and his own interior riches, that which he would communicate to the prisoner. Otherwise his words would be only sounding brass and tinkling cymbals (I Cor. xiii, 1).
We have read with deep emotion what one of your members, the distinguished Professor Carnelutti, has written on the words which the Lord will pronounce at the end of time: “ I was in prison and you visited me . . . As long as you did it for one of these the least of my brethren, you did it for me “ (St. Matthew xxv, 36–40). What is here proposed as the ideal in the giving of oneself for the spiritual salvation and purification of the prisoner, goes beyond the new precept of the Divine Redeemer, “ Love one another,” which was to be the evident mark whereby His disciples would recognize one another (St. John xi ii, 34–35); it is a question, in fact, of approaching the guilty one in such wise as to see, honour and love him in the Lord, and even so to liken oneself to him as to put oneself spiritually in the place of the man in convict’s garb and detained in his prison cell, as the Lord said of Himself: “ I was in prison and you came to me “ (St. Matthew xxv, 36). All of this interior world, this light, and this goodness of Christ can give the condemned prisoner support and help, so that he may come forth from the wretched servitude of punishment and acquire once again freedom and inward peace.
Contribution of the Community to Deliverance.
Furthermore, the words of the Lord place an obligation not only on those who have the immediate care of the condemned person, but also on the community itself, of which he is and remains a member. The community should see to it that it is disposed to welcome lovingly the man who comes forth from prison to freedom. This love should not be blind, but clear-sighted, and, at the same time, sincere, helpful and discreet, such as to make possible his re-adaptation to social life, and a renewed consciousness of himself as free from guilt and punishment. The requirements of such a disposition are not based upon an Utopian blindness to reality. As has been noted, not all criminals are ready and inclined to bear with the required process of purification, and perhaps the percentage of such is rather large; but it is still true that many others can be and are helped to obtain complete inward release, and for these especially, no Christian effort will ever be too much or too difficult.
May these considerations of Ours contribute with the richness of Christian thought towards revealing the true meaning, morally and religiously purified, of punishment, and with the outpouring of charitable assistance, may they help to make smooth for the condemned prisoner the way that must lead him to the longed-for release from guilt and punishment.
With such sentiments We ask God to bestow upon you, gentlemen, and upon your noble and meritorious work the choicest and most abundant heavenly favours, while from Our heart We impart to you Our paternal Apostolic Blessing.
An Address to the First International Congress on the Histopathology of the Nervous System — Pope Pius XII
September 14, 1952
1. The “First International Congress on the Histopathology of the Nervous System” has succeeded in covering a truly vast amount of material. Through detailed explanation and demonstration it had to put into exact perspective the causes and first beginnings of the diseases of the nervous system properly so called and of the diseases we call psychic. A report was read and an exchange of views held on recent ideas and discoveries concerning lesions of the brain and other organs, which are the origin and cause of nervous diseases as well as of psychopathic illness. These discoveries have been made, partly, through entirely new means and methods. The number and nationality of the participants in the Congress, and especially of the speakers, show that specialists of the most diverse countries and nationalities have exchanged experiences for their own mutual benefit and to promote the interests of science, the interests of the individual patient and the interests of the community.
2. You do not expect Us to discuss the medical questions which concern you. Those are your domain. During the past few days you have taken a general view of the vast field of research and work which is yours. Now, in answer to the wish you yourselves have expressed, We want to draw your attention to the limits of this field — not the limits of medical possibilities, of theoretical and practical medical knowledge, but the limits of moral rights and duties. We wish to make Ourself the interpreter of the moral conscience of the research worker, the specialist and the practitioner and of the man and Christian who follows the same path.
3. In your reports and discussions you have caught sight of many new roads, but there remain a number of questions still unsolved. The bold spirit of research incites one to follow newly discovered roads, to extend them, to create new ones and to renew methods. A serious, competent doctor will often see with a sort of spontaneous intuition the moral legality of what he proposes to do and will act according to his conscience. But there are other instances where he does not have this security, where he may see or think he sees the contrary with certainty or where he doubts and wavers between Yes and No. In the most serious and profound matters, the man in the physician is not content with examining from a medical point of view what he can attempt and succeed in. He also wants to see his way clearly in regard to moral possibilities and obligations.
4. We would like to set forth briefly the which permit an answer to be given to this question. The application to specific cases you will make yourselves in your role of doctor, because only the doctor understands the medical evidence thoroughly both in itself and in its effects and because without exact knowledge of the medical facts it is impossible to determine what moral principle applies to the treatment under discussion. The doctor, therefore, looks at the medical aspect of the case, the moralist, the laws of morality. Ordinarily, when explained and completed mutually, the medical and moral evidence will make possible a reliable decision as to the moral legality of the case in all its concrete aspects.
5. In order to justify the morality of new procedures, new attempts and methods of research and medical treatment, three main principles must be kept in mind:
1) The interests of medical science.
2) The interests of the individual patient to be treated.
3) The interests of the community, the “bonum commune.”
6. We ask whether these three interests, taken singly or even together, have absolute value in motivating and justifying medical treatment or whether they are valid merely within certain determined limits? In the latter case, what are these limits? To this We shall try to give a brief answer.
I. The Interests of Science as Justification for Research and the Use of New Methods.
7. Scientific knowledge has its own value in the domain of medical science no less than in other scientific domains, such as, for example, physics, chemistry, cosmology and psychology. It is a value which must certainly not be minimized, a value existing quite independently of the usefulness or use of the acquired knowledge. Moreover, knowledge as such and the full understanding of any truth raise no moral objection. By virtue of this principle, research and the acquisition of truth for arriving at new, wider and deeper knowledge and understanding of the same truth are in themselves in accordance with the moral order.
8. But this does not mean that all methods, or any single method, arrived at by scientific and technical research offers every moral guarantee. Nor, moreover, does it mean that every method becomes licit because it increases and deepens our knowledge.
Sometimes it happens that a method cannot be used without injuring the rights of others or without violating some moral rule of absolute value. In such a case, although one rightly envisages and pursues the increase of knowledge, morally the method is not admissible. Why not? Because science is not the highest value, that to which all other orders of values — or in the same order of value, all particular values — should be subordinated. Science itself, therefore, as well as its research and acquisitions, must be inserted in the order of values. Here there are well defined limits which even medical science cannot transgress without violating higher moral rules. The confidential relations between doctor and patient, the personal right of the patient to the life of his body and soul in its psychic and moral integrity are just some of the many values superior to scientific interest. This point will become more obvious as We proceed.
9. Although one must recognize in the “interests of science” a true value that the moral law allows man to preserve, increase and widen, one cannot concede the following statement: “Granted, obviously, that the doctor’s intervention is determined by scientific interest and that he observes the rules of his profession, there are no limits to the methods for increasing and deepening medical science.” Even on this condition, one cannot just concede this principle.
II. The Interests of the Patient as Justification of New Medical Methods of Research and Treatment.
10. In this connection, the basic considerations may be set out in the following form: “The medical treatment of the patient demands taking a certain step. This in itself proves its moral legality.” Or else: “A certain new method hitherto neglected or little used will give possible, probable or sure results. All ethical considerations as to the licitness of this method are obsolete and should be treated as pointless.”
11. How can anyone fail to see that in these statements truth and falsehood are intermingled? In a very large number of cases the “interests of the patient” do provide the moral justification of the doctor’s conduct. Here again, the question concerns the absolute value of this principle. Does it prove by itself, does it make it evident that what the doctor wants to do conforms to the moral law?
12. In the first place it must be assumed that, as a private person, the doctor can take no measure or try no course of action without the consent of the patient. The doctor has no other rights or power over the patient than those which the latter gives him, explicitly or implicitly and tacitly. On his side, the patient cannot confer rights he does not possess. In this discussion the decisive point is the moral licitness of the right a patient has to dispose of himself. Here is the moral limit to the doctor’s action taken with the consent of the patient.
13. As for the patient, he is not absolute master of himself, of his body or of his soul. He cannot, therefore, freely dispose of himself as he pleases. Even the reason for which he acts is of itself neither sufficient nor determining. The patient is bound to the immanent teleology laid down by nature. He has the right of use, limited by natural finality, of the faculties and powers of his human nature. Because he is a user and not a proprietor, he does not have unlimited power to destroy or mutilate his body and its functions. Nevertheless, by virtue of the principle of totality, by virtue of his right to use the services of his organism as a whole, the patient can allow individual parts to be destroyed or mutilated when and to the extent necessary for the good of his being as a whole. He may do so to ensure his being’s existence and to avoid or, naturally, to repair serious and lasting damage which cannot otherwise be avoided or repaired.
14. The patient, then, has no right to involve his physical or psychic integrity in medical experiments or research when they entail serious destruction, mutilation, wounds or perils.
15. Moreover, in exercising his right to dispose of himself, his faculties and his organs, the individual must observe the hierarchy of the orders of values — or within a single order of values, the hierarchy of particular rights — insofar as the rules of morality demand. Thus, for example, a man cannot perform on himself or allow doctors to perform acts of a physical or somatic nature which doubtless relieve heavy physical or psychic burdens or infirmities, but which bring about at the same time permanent abolition or considerable and durable diminution of his freedom, that is, of his human personality in its typical and characteristic function. Such an act degrades a man to the level of a being reacting only to acquired reflexes or to a living automation. The moral law does not allow such a reversal of values. Here it sets up its limits to the “medical interests of the patient.”
16. Here is another example. In order to rid himself of repressions, inhibitions or psychic complexes man is not free to arouse in himself for therapeutic purposes each and every appetite of a sexual order which is being excited or has been excited in his being, appetites whose impure waves flood his unconscious or subconscious mind. He cannot make them the object of his thoughts and fully conscious desires with all the shocks and repercussions such a process entails. For a man and a Christian there is a law of integrity and personal purity, of self-respect, forbidding him to plunge so deeply into the world of sexual suggestions and tendencies. Here the “medical and psychotherapeutic interests of the patient” find a moral limit. It is not proved — it is, in fact, incorrect — that the pansexual method of a certain school of psychoanalysis is an indispensable integrating part of all psychotherapy which is serious and worthy of the name. It is not proved that past neglect of this method has caused grave psychic damage, errors in doctrine and application in education, in psychotherapy and still less in pastoral practice. It is not proved that it is urgent to fill this gap and to initiate all those interested in psychic questions in its key ideas and even, if necessary, in the practical application of this technique of sexuality.
17. We speak this way because today these assertions are too often made with apodictic assurance. Where instincts are concerned it would be better to pay more attention to indirect treatment and to the action of the conscious psyche on the whole of imaginative and affective activity. This technique avoids the deviations We have mentioned. It tends to enlighten, cure and guide; it also influences the dynamic of sexuality, on which people insist so much and which they say is to be found, or really exists, in the unconscious or subconscious.
18. Up to now We have spoken directly of the patient, not of the doctor. We have explained at what point the personal right of the patient to dispose of himself, his mind, his body, his faculties, organs and functions, meets a moral limit. But at the same time We have answered the question: Where does the doctor find a moral limit in research into and use of new methods and procedures in the “interests of the patient?” The limit is the same as that for the patient. It is that which is fixed by the judgment of sound reason, which is set by the demands of the natural moral law, which is deduced from the natural teleology inscribed in beings and from the scale of values expressed by the nature of things. The limit is the same for the doctor as for the patient because, as We have already said, the doctor as a private individual disposes only of the rights given him by the patient and because the patient can give only what he himself possesses.
19. What We say here must be extended to the legal representatives of the person incapable of caring for himself and his affairs: children below the age of reason, the feebleminded and the insane. These legal representatives, authorized by private decision or by public authority have no other rights over the body and life of those they represent than those people would have themselves if they were capable. And they have those rights to the same extent. They cannot, therefore, give the doctor permission to dispose of them outside those limits.
III. The Interests of the Community as Justification of New Medical Methods of Research and Treatment.
20. For the moral justification of the doctor’s right to try new approaches, new methods and procedures We invoke a third interest, the interest of the community, of human society, the common good or “bonum commune,” as the philosopher and social student would say.
21. There is no doubting the existence of such a common good. Nor can we question the fact that it calls for and justifies further research. The two interests of which We have already spoken, that of science and that of the patient, are closely allied to the general interest.
22. Nevertheless, for the third time we come back to the question: Is there any moral limit to the “medical interests of the community” in content or extension? Are there “full powers” over the living man in every serious medical case? Does it raise barriers that are still valid in the interests of science or the individual? Or, stated differently: Can public authority, on which rests responsibility for the common good, give the doctor the power to experiment on the individual in the interests of science and the community in order to discover and try out new methods and procedures when these experiments transgress the right of the individual to dispose of himself? In the interests of the community, can public authority really limit or even suppress the right of the individual over his body and life, his bodily and psychic integrity?
23. To forestall an objection, We assume that it is a question of serious research, of honest efforts to promote the theory and practice of medicine, not of a maneuver serving as a scientific pretext to mask other ends and achieve them with impunity.
24. In regard to these questions many people have been of the opinion and are still of the opinion today, that the answer must be in the affirmative. To give weight to their contention they cite the fact that the individual is subordinated to the community, that the good of the individual must give way to the common good and be sacrificed to it.
They add that the sacrifice of an individual for purposes of research and scientific investigation profits the individual in the long run.
25. The great postwar trials brought to light a terrifying number of documents testifying to the sacrifice of the individual in the “medical interests of the community.” In the minutes of these trials one finds testimony and reports showing how, with the consent and, at times, even under the formal order of public authority, certain research centers systematically demanded to be furnished with persons from concentration camps for their medical experiments. One finds how they were delivered to such centers, so many men, so many women, so many for one experiment, so many for another. There are reports on the conduct and the results of such experiments, of the subjective and objective symptoms observed during the different phases of the experiments. One cannot read these reports without feeling a profound compassion for the victims, many of whom went to their deaths, and without being frightened by such an aberration of the human mind and heart. But We can also add that those responsible for these atrocious deeds did no more than to reply in the affirmative to the question We have asked and to accept the practical consequences of their affirmation.
26. At this point is the interest of the individual subordinated to the community’s medical interests, or is there here a transgression, perhaps in good faith, against the most elementary demands of the natural law, a transgression that permits no medical research?
27. One would have to shut one’s eyes to reality to believe that at the present time one could find no one in the medical world to hold and defend the ideas that gave rise to the facts We have cited. It is enough to follow for a short time the reports on medical efforts and experiments to convince oneself of the contrary. Involuntarily one asks oneself what has authorized, and what could ever authorize, any doctor’s daring to try such an experiment. The experiment is described in all its stages and effects with calm objectivity. What is verified and what is not is noted. But there is not a word on its moral legality. Nevertheless, this question exists, and one cannot suppress it by passing it over in silence.
28. In the above mentioned cases, insofar as the moral justification of the experiments rests on the mandate of public authority, and therefore on the subordination of the individual to the community, of the individual’s welfare to the common welfare, it is based on an erroneous explanation of this principle. It must be noted that, in his personal being, man is not finally ordered to usefulness to society. On the contrary, the community exists for man.
29. The community is the great means intended by nature and God to regulate the exchange of mutual needs and to aid each man to develop his personality fully according to his individual and social abilities. Considered as a whole, the community is not a physical unity subsisting in itself and its individual members are not integral parts of it. Considered as a whole, the physical organism of living beings, of plants, animals or man, has a unity subsisting in itself. Each of the members, for example, the hand, the foot, the heart, the eye, is an integral part destined by all its being to be inserted in the whole organism. Outside the organism it has not, by its very nature, any sense, any finality. It is wholly absorbed by the totality of the organism to which it is attached.
30. In the moral community and in every organism of a purely moral character, it is an entirely different story. Here the whole has no unity subsisting in itself, but a simple unity of finality and action. In the community individuals are merely collaborators and instruments for the realization of the common end.
31. What results as far as the physical organism is concerned? The master and user of this organism, which possesses a subsisting unity, can dispose directly and immediately of integral parts, members and organs within the scope of their natural finality. He can also intervene, as often as and to the extent that the good of the whole demands, to paralyze, destroy, mutilate and separate the members. But, on the contrary, when the whole has only a unity of finality and action, its head — in the present case, the public authority — doubtlessly holds direct authority and the right to make demands upon the activities of the parts, but in no case can it dispose of its physical being. Indeed, every direct attempt upon its essence constitutes an abuse of the power of authority.
32. Now medical experiments — the subject We are discussing here immediately and directly affect the physical being, either of the whole or of the several organs, of the human organism. But, by virtue of the principle We have cited, public authority has no power in this sphere. It cannot, therefore, pass it on to research workers and doctors. It is from the State, however, that the doctor must receive authorization when he acts upon the organism of the individual in the “interests of the community.” For then he does not act as a private individual, but as a mandatory of the public power. The latter cannot, however, pass on a right that it does not possess, save in the case already mentioned when it acts as a deputy, as the legal representative of a minor for as long as he cannot make his own decisions, of a person of feeble mind or of a lunatic.
33. Even when it is a question of the execution of a condemned man, the State does not dispose of the individual’s right to life. In this case it is reserved to the public power to deprive the condemned person of the of life in expiation of his crime when, by his crime, he has already disposed himself of his right to live.
34. We cannot refrain from explaining once more the point treated in this third part in the light of the principle to which one customarily appeals in like cases. We mean the principle of totality. This principle asserts that the part exists for the whole and that, consequently, the good of the part remains subordinated to the good of the whole, that the whole is a determining factor for the part and can dispose of it in its own interest.
This principle flows from the essence of ideas and things and must, therefore, have an absolute value.
35. We respect the principle of totality in itself but, in order to be able to apply it correctly, one must always explain certain premises first. The basic premise is that of clarifying the , the question of fact. Are the objects to which the principle is applied in the relation of a whole to its parts? A second premise is the clarification of the nature, extension and limitation of this relationship. Is it on the level of essence or merely on that of action, or on both? Does it apply to the part under a certain aspect or in all its relations? And, in the field where it applies, does it absorb the part completely or still leave it a limited finality, a limited independence? The answers to these questions can never be inferred from the principle of totality itself. That would be a vicious circle. They must be drawn from other facts and other knowledge. The principle of totality itself affirms only this: where the relationship of a whole to its part holds good, and in the exact measure it holds good, the part is subordinated to the whole and the whole, in its own interest, can dispose of the part. Too often, unfortunately, in invoking the principle of totality, people leave these considerations aside, not only in the field of theoretical study and the field of application of law, sociology, physics, biology and medicine, but also of logic, psychology and metaphysics.
36. Our plan was to draw your attention to certain principles of deontology which define the limits and confines of research and experimentation in regard to new medical methods to be immediately applied to living men.
37. In the domain of your science it is an obvious law that the application of new methods to living men must be preceded by research on cadavers or the model of study and experimentation on animals. Sometimes, however, this procedure is found to be impossible, insufficient or not feasible from a practical point of view. In this case, medical research will try to work on its immediate object, the living man, in the interests of science, in the interests of the patient and in the interests of the community.
Such a procedure is not to be rejected without further consideration. But you must stop at the limits laid down by the moral principles We have explained.
38. Without doubt, before giving moral authorization to the use of new methods, one cannot ask that any danger or any risk be excluded. That would exceed human possibilities, paralyze all serious scientific research and very frequently be to the detriment of the patient. In these cases the weighing of the danger must be left to the judgment of the tried and competent doctor. Nevertheless, as Our explanation has shown, there is a degree of danger that morality cannot allow. In doubtful cases, when means already known have failed, it may happen that a new method still insufficiently tried offers, together with very dangerous elements, appreciable chances of success. If the patient gives his consent, the use of the procedure in question is licit. But this way of acting cannot be upheld as a line of conduct in normal cases.
39. People will perhaps object that the ideas set forth here present a serious obstacle to scientific research and work. Nevertheless, the limits We have outlined are not by definition an obstacle to progress. The field of medicine cannot be different in this respect from other fields of man’s research, investigations and work. The great moral demands force the impetuous flow of human thought and will to flow, like water from the mountains, into certain channels. They contain the flow to increase its efficiency and usefulness. They dam it so that it does not overflow and cause ravages that can never be compensated for by the special good it seeks. In appearance, moral demands are a brake. In fact, they contribute to the best and most beautiful of what man has produced for science, the individual and the community.
40. May Almighty God in His benevolent Providence give you His blessing and grace to this end.
1957 Address of Pius XII to Catholic Jurists regarding aid to the Incarcerated