A statement by Pope Francis has once again attracted controversy in the past few days – and this time it actually is a question of substance, based on a carefully composed statement of the Pope, not on some wild misunderstanding of a papal plane interview. This time Francis is raising a serious question of “the development of doctrine.” On October 11, speaking to a roomful of people gathered to celebrate the twenty-fifth anniversary of the promulgation of the Catechism of the Catholic Church, he said:
Along these same lines, I would like now to bring up a subject that ought to find in the Catechism of the Catholic Church a more adequate and coherent treatment in the light of these expressed aims. I am speaking of the death penalty. This issue cannot be reduced to a mere résumé of traditional teaching without taking into account not only the doctrine as it has developed in the teaching of recent Popes, but also the change in the awareness of the Christian people which rejects an attitude of complacency before a punishment deeply injurious of human dignity. It must be clearly stated that the death penalty is an inhumane measure that, regardless of how it is carried out, abases human dignity. It is per se contrary to the Gospel, because it entails the willful suppression of a human life that never ceases to be sacred in the eyes of its Creator and of which – ultimately – only God is the true judge and guarantor. No man, “not even a murderer, loses his personal dignity” (Letter to the President of the International Commission against the Death Penalty, 20 March 2015), because God is a Father who always awaits the return of his children who, knowing that they have made mistakes, ask for forgiveness and begin a new life. No one ought to be deprived not only of life, but also of the chance for a moral and existential redemption that in turn can benefit the community. (Source)
This goes a good way beyond the statements of John Paul II in Evangelium Vitae and the Catechism, which say that the death penalty is theoretically legitimate, but almost never advisable or necessary in practice. (source). Pope Francis believes, instead, that it is “contrary to the Gospel.” It should be pointed out that he is not yet making any substantive change, but is asking that the question be examined for future editions of the Catechism. He has immediately been attacked by Catholic death penalty supporters. For instance, philosopher Ed Feser writes that because of the unanimous testimony of the Fathers, the popes, and other Catholic teaching “the legitimacy of capital punishment is irreformable Catholic teaching. And if that is so, then it follows that a pope who taught that capital punishment was always and intrinsically wrong would be as manifestly guilty of doctrinal error as he would be if he denied the Trinity.” He admits that the Pope says some things that point in the opposite direction, but that they aren’t much help:
Indeed, Pope Francis goes so far as to assert that in saying what he does about capital punishment, he is “not in any way contradicting past teaching” and that the view he is advocating “in no way represents a change in doctrine” (emphasis added). Now, as already noted, the past, unbroken doctrine of the Church is that capital punishment can under certain circumstances be a legitimate form of punishment. But if that is the case, then capital punishment is not after all “per se contrary to the Gospel” and it is not of its very nature “inadmissible… no matter how serious the crime.” (Source)
So Feser believes that there is a real contradiction between Pope Francis’ words and Church teaching and doesn’t apparently see much room for the “development of doctrine.”
A Significant Story and its History
What should we say? The Church does accept that there is doctrinal development; we can cite a number of past examples. It took many centuries for the Church to understand how St. Paul’s words that in Christ, there is “neither Jew nor Greek, slave nor free” (Gal 3:28) applied to slavery – even though Paul himself at least partly understood the implications (Philemon 1:16). There were similar difficulties the question of usury. And then there is the matter of religious liberty – the Church did make a turnabout here at Vatican II. Could the death penalty be another such case?
Neither the Pope or his accuser said anything about how Jesus himself weighed in on this question. And there is a famous episode in the Gospels where he was asked to directly address the question – in fact, to actually serve as judge in a death penalty case. I’m talking, of course, about the story of the woman taken in adultery in John 8:1-11. I believe this text could be helpful on the question of the development of doctrine by a deeper understanding of the Gospel. Here is the text:
But early in the morning [Jesus] arrived again in the temple area, and all the people started coming to him, and he sat down and taught them. Then the scribes and the Pharisees brought a woman who had been caught in adultery and made her stand in the middle. They said to him, “Teacher, this woman was caught in the very act of committing adultery. Now in the law, Moses commanded us to stone such women. So what do you say?” They said this to test him, so that they could have some charge to bring against him. Jesus bent down and began to write on the ground with his finger. But when they continued asking him, he straightened up and said to them, “Let the one among you who is without sin be the first to throw a stone at her.” Again he bent down and wrote on the ground. And in response, they went away one by one, beginning with the elders. So he was left alone with the woman before him. Then Jesus straightened up and said to her, “Woman, where are they? Has no one condemned you?” She replied, “No one, sir.” Then Jesus said, “Neither do I condemn you. Go, [and] from now on do not sin any more.”
This is one of the most famous stories in the Gospel, and one of the most commented on. It is certainly one of my favorites. But it is relatively seldom used in discussions of the Church’s view of capital punishment, at least I don’t recall it being used in any of the discussions I’ve heard. Of course, the argument might be difficult in ecumenical terms. Many Protestants don’t recognize this passage from John as Scripture because it is widely regarded as not written by the evangelist, and therefore not canonical. In fact, the story has a long and rather strange textual history. It is missing from the earliest Greek manuscripts of John and not commented on in the early Fathers. Yet there are evidences of its circulation as part of the Gospel of John as early as the second century. Many textual scholars, based on the style and vocabulary, have questioned whether the passage is actually by the author of the Fourth Gospel.
Yet almost all scholars agree that it is a very early tradition, which may go back to the early Hebrew Gospel of Matthew, which is regarded as being by the apostle, but separate from the later Greek text. Some have suggested that it may have been inserted later into John on this basis or because it was judged ancient. Others think it might have been actually omitted from many copies for a reason I will go into later on. Whatever the case, the passage was included in the many manuscripts of the second-century Old Latin translation of the New Testament, and St. Jerome accepted it into the Vulgate, which in time became the definitive edition for the Western Church. There were three great champions of the passage in the fourth century: Jerome, Augustine and Ambrose. The Greek manuscripts from the fifth century on include it. In this way, the story gained a place in the Catholic canon of inspired Scripture, a place that was confirmed by the Council of Trent.
Recently, skeptical biblical scholar Bart Ehrman has succeeded in misleading a number of people as to the history involved. But in spite of the controversy, this is a solid Biblical text for Catholics. And I think I can say that is been largely ignored lately in discussion about the death penalty. But let’s look at what it does have to say.
Accounts of Stoning in Scripture and Jewish Law on the Death Penalty
My exegesis of the passage begins with an examination of what it implies about the law on the death penalty and stoning at the time. A few of the questions it immediately raises are: is this an actual trial or something more like a lynching? Wasn’t a formal trial by the Sanhedrin or some other court required? Didn’t executions have to take place outside the city walls? What about the law that the Jews could not execute a person without consent of the Roman authorities? There are no Romans in sight in this story.
In Jewish law, a person could only be given the death sentence on the testimony of two witnesses (Deut 17:16), and the witnesses had to agree – as illustrated by Daniel’s inspired cross-examination of the elders who plotted against Susanna (Daniel 13:50-61). Trials could be carried out by the Levitical priests or lay judges (2 Chr 19:8). Executions had to be done outside the city walls (Lev 24:14; Acts 7:58). Stoning was carried out by throwing or pushing a person from a high place, followed by dropping heavy rocks on him. In addition, the witnesses themselves where to be required to throw the first stones, followed by the rest of the people (Dt 17:7). Also, if the witnesses were found to have lied in their testimony, the death penalty would have been inflicted on them. (Dt 17:7, Dan 13:61).
This in and of itself should give pause to anyone, not just those arguing for or against the death penalty, but for anyone taking part in a criminal proceeding where capital punishment is imposed. If we were asked to testify against someone in court and knew that we would be asked to carry out the execution personally, if the defendant is found guilty, would we agree to testify? And if we knew that we would be condemned to death if it were found that we gave false eyewitness testimony, would we agree to give this testimony? This gives us an idea of how seriously Old Testament law looked upon trials and the judicial taking of life.
But there is another side to the question. There are examples in the New Testament of cases where, in spite of all the cautions, anger and a mob mentality prevailed. For instance, as Jesus was preaching in the synagogue in Nazareth, the townspeople, enraged at his statements, formed a mob, drove him out of town and attempted to throw him off a cliff (the preliminary to stoning), though they were unable to hold him (Lk 4:29-30). And when Paul was in the Temple in Jerusalem, (Acts 21:30-31), his enemies, who considered him a blasphemer and enemy of the law, caught sight of him, dragged out of the Temple and tried to kill him – perhaps by stoning? The trial and stoning of St. Stephen before the Sanhedrin in Jerusalem (Acts 6-7) seems to have followed something more like the usual procedure: it was carried out in front of the high priest, with witnesses, but at his proclamation of Jesus, “they cried out in a loud voice, covered their ears, and rushed upon him together. They threw him out of the city, and began to stone him.” (7:58). In neither case, is anything like a formal sentence pronounced. The trial ended in a sort of mob mentality taking over. The trial of Jesus himself before the Sanhedrin is instructive in showing how an innocent person can be condemned even by a carefully set up judicial system.
What about the need for Roman confirmation? We learn this from the trial of Jesus, where the Jewish authorities expressly evoke it: “We are not permitted to put anyone to death” (John 18:31). But it is probable few people took notice of it in smaller communities away from direct access to the authorities; it is certainly absent from Nazareth incident. Even in Jerusalem, the Jewish authorities were not always anxious to evoke this rule. The first-century Jewish historian Josephus describes how the high priest Ananus took advantage of the period between the departure of one Roman governor and arrival of the new one to execute James, the brother of the Lord and some other disciples, obviously so the new governor would be unable to stop him (Antiquities of the Jews 20:9:1).
The Story and Jesus’ Reaction
Whatever the history of the text, I will deal with it as it stands now in the canonical Gospel. Let’s begin with the setting of the scene. It doesn’t appear that the scribes and Pharisees coming to Jesus is an impromptu thing, though it does not seem that a trial has yet taken place. It is evidently a carefully laid plot. The Gospel says that the scribes and Pharisees wanted to entrap Jesus and have something to charge him with. What might t have been? Jesus was widely criticized by the Jewish authorities for rejecting some of the ritual aspects of the Mosaic law, and had even claimed to abrogate Jewish law on divorce. Many commentators have suggested that since Jesus was known to be merciful to sinners, this was a way to trap him between the requirements of justice and his well-known mercy. Most commentators don’t suggest this openly, but they were probably expecting him to reject the death penalty in Mosaic law, so they could hold this against him. Or was it the Mosaic law vs. the Roman law? As T. W. Manson puts it, ” If Jesus sanctions the execution of the woman, he thereby usurps the power of the Roman authorities; if he forbids it, he goes against the plain teaching of the Law of Moses.”
Jesus understands the law, and has shown that he can debate on it at length. Yet he doesn’t engage in any debate here. He speaks one short sentence and disperses the crowd, saving the woman’s life. Pretty impressive, especially since it was a situation, as we can see, fraught with the possibility of sudden violence, especially with a crowd involved, as Jesus knew by personal experience. His words were effective for several reasons. First, getting the focus off the woman and onto her accusers defused the situation, and lessened the probability of it leading to violence. It also worked as an appeal to his accusers’ instinct for self-preservation. If they really were lying about being an eyewitness to this sin, or have evil motives, then they would really have to answer for it with their lives. It would also be effective in the appeal not only to conscience but to shame, for no one could stand in front of their fellows and by such an action claim to be without sin. Jewish law was clear on this — and shame was an important aspect of Jewish culture at the time.
Yet there is even more going on in the story. There are some very important points brought out the text by the Church Fathers, and along with them, some surprising relevance to our modern debate on the death penalty, which I will explore in the next installment.
 In fact, it even has its own website: http://pericopedeadultera.org. I have to confess that I was barely able to tear myself away from this fascinating site to get back to working on this post. The author, who goes by the charming name of Nazaroo, is a pretty vocal advocate of the passage being an original part of John’s Gospel, and his comments are rather biased, but it has a ton of excellent discussion and good references.
 Protestants, of course, don’t accept the authority of the Catholic Church to say what is Scripture, but many Protestants are willing to accept the story on basis of its historicity, or the weight of tradition. For a Protestant-based discussion, see Armin Baum, “Does the PA have Canonical Authority? An Interconfessional Approach.” Bulletin for Biblical Research 24: 2 (2014): 163-178.
 For instance, our earliest (almost) complete MS of John, P66, from ca. 150-200 A.D. does not include the passage, but a mark in the text indicates that it is found in some copies (see in the illustration above, the dot near the end of the second line), but is omitted as of doubtful authenticity in this one. It also seems to have been included, except for one or two MSS, in the Diatesseron, or Gospel harmony, of Tatian, from the late second century (see http://pericopedeadultera.org/FATHERS/Tatian.html). The history of the text and commentary on the story is dizzyingly complex. Two good sources for a more complete account (in addition to the website mentioned in note 1) are Chris Keith, “Jesus Began to Write: Literacy, the Pericope Adulterae, and the Gospel of John.” Ph.D. thesis, University of Edinburgh. 2008. (https://www.era.lib.ed.ac.uk/handle/1842/2595) and John David, “The Pericope Adulterae: Theories of Insertion & Omission.” Ph.D Thesis, Radboud University, Nijmegen, 2010.(http://repository.ubn.ru.nl/bitstream/handle/2066/76519/76519.pdf). Both works are more comprehensive in their treatment than their titles suggest.
 The earliest source for this is Papias, the bishop of Hierapolis in the early second century: “Papias also put forth another history concerning a woman accused of many sins before the Lord; and this history is contained in the Gospel according to the Hebrews.” (Eusebius, The Ecclesiastical History 3: 39).
 The Council decreed canonical all the books of the New Testament “in their entirety and with all their parts, as they have been accustomed to be read in the Catholic Church and as they are contained in the old Latin Vulgate edition” (Canons and Decrees of the Council of Trent, trans. H. J. Schroeder; Rockford: Tan, 1978, p. 18). The emphasized words were intended to include passages such as John 7:53-8:11 and the last 16 verses of Mark. See George Reid, “Canon of the Old Testament” and “Canon of the New Testament.” The Catholic Encyclopedia. Vol. 3. New York: Robert Appleton Company, 1908. http://www.newadvent.org/cathen/03267a.htm and http://www.newadvent.org/cathen/03274a.htm.
 Ehrman actually claimed in several interviews in popular media promoting his book Misquoting Jesus, that the story of the adulteress only entered Greek manuscripts around the twelfth century as the result of a scribal error. In the book itself, he only claims ” Most scholars think that it was probably a well-known story circulating in the oral tradition about Jesus, which at some point was added in the margin of a manuscript. From there some scribe or other thought that the marginal note was meant to be part of the text and so inserted it. . .” Bart Ehrman, Misquoting Jesus, New York: HarperCollins, 2005, (e-book ed.), p. 82. For the interviews, see http://pericopedeadultera.org/DUMB/Ehrmin.html. For someone renowned as the major textual scholar of the New Testament in our day, this leaves out a great deal, to say the least! Not to mention that if it the result of a scribal addition, it was probably in the second century rather than the twelfth.
 T. W. Manson, “The Pericope de Adultera (Joh 753–811).” Zeitschrift fuer die neutestamentliche Wissenschaft 43 (1952 /53) 255–256