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Capital Punishment and the Papal Magisterium: A Response to Dr. Edward Feser

The issue is not so much whether prior popes were in error in their scriptural citations. The issue is whether their scriptural appeals qualify as definitive and infallible judgments of the papal Magisterium.

Pope Francis leads his general audience June 7 in St. Peter's Square at the Vatican. (CNS/Alessandro Bianchi, Reuters)

Editor’s note: The following was originally posted as a comment on Dr. Edward Feser’s October 21st essay “On capital punishment, even the pope’s defenders are confused” and is reposted here with kind permission of Dr. Fastiggi.

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With all due respect to Dr. Feser, most of his comments betray a failure to grasp fully the points I made in reply to Eduardo Echeverria’s Oct. 15 article on Pope Francis and capital punishment. As I wrote: “Regarding prior teaching on capital punishment, much depends on whether it is definitive or subject to change and development. Not everyone agrees with Feser, Bessette, and Cardinal Dulles that the liceity of the death penalty is settled doctrine. Some believe that the historic recognition of the penalty’s legitimacy is more like a sententia communis rather than a definitive teaching.”

This is just a simple statement of fact. Not everyone agrees with Feser and Bessette that the legitimacy in principle of capital punishment “is a requirement of Catholic orthodoxy” (By Man Shall His Blood be Shed, p. 122). In their book, Feser and Bessette bring forth many examples manifesting a widespread consensus (sententia communis) in favor of capital punishment’s legitimacy in the Catholic tradition. These examples are noteworthy, but they do not, in my opinion, demonstrate a definitive, infallible judgment on the part of the Magisterium in favor of the legitimacy of the death penalty. I explain this in more depth in my article, “Capital Punishment, the Magisterium, and Religious Assent” (Josephinum Journal of Theology Vol. 12, No. 2 [Summer/ Fall, 2005], 192-213.)

Feser’s suggestion that Pope Francis is “flirting with doctrinal error,” therefore, depends entirely on his claim that the legitimacy of capital punishment “is a requirement of Catholic orthodoxy.” In my comments posted in response to Prof. Echeverria’s article, I was merely pointing out that this claim of Feser is precisely the issue in dispute. Unless Feser wishes to fall into the fallacy of begging the question (petitio principii) he should not present his claim as a non-arguable conclusion. The Congregation for the Doctrine of the Faith warned about such an attitude in Donum Veritatis, 27: “Even if the doctrine of the faith is not in question, the theologian will not present his own opinions or divergent hypotheses as though they were non-arguable conclusions. Respect for the truth as well as for the People of God requires this discretion (cf. Rom 14:1-15; 1 Cor 8; 10: 23-33). For the same reasons, the theologian will refrain from giving untimely public expression to them.”

I don’t dispute Prof. Feser’s right to argue his position and to make his position known to others. I think, though, it’s a bit rash for him to suggest that Pope Francis is “flirting with doctrinal error” because of a particular assessment of the historical evidence in support of the death penalty legitimacy that Feser believes is “conclusive.” At the very least, Feser should admit that his assessment of the evidence is not conclusive in the eyes of all but merely a position that he and others find persuasive.

Prof. Feser maintains that my comments about Scripture and the death penalty are “problematical.” Once again he fails to understand my position. I simply stated that the Old Testament passages that support capital punishment must be studied carefully to determine whether they are permanent teachings or examples of the judicial law, which is subject to change (cf. St. Thomas Aquinas I-II qq. 99–100, 103–105). Is Prof. Feser opposed to a careful study of these Scriptures? My point is that what Feser considers “conclusive evidence” is not seen as such by other scholars (See, for example, David McClamrock’s Sept. 27 review of the Feser-Bessette volume in Today’s Catholic from the Diocese of Fort Wayne-South Bend, IN). As for Feser’s repeated appeals to Genesis 9:6 and Roman 13:4 in favor of the death penalty, he does not present any magisterial affirmations of his interpretation of these passages that qualify as definitive and infallible judgments. Moreover, Genesis 9:6 is a problematical passage to cite in favor of the State’s right to execute criminals because there was no State at that time in the biblical narrative. There was simply Noah and his family.

Feser ignores Pope Benedict XVI’s citation of Gen 9:6 against the killing of those who kill. He also ignores my citation of Pius XII who reminds us that “there are but few [Scriptural] texts whose sense has been defined by the authority of the Church; nor are those more numerous about which the teaching of the Holy Fathers is unanimous” (Divino Afflante Spiritu, n. 47). These two citations, however, argue against Feser’s position on the conclusive scriptural evidence in favor of capital punishment’s legitimacy. Perhaps this is why he ignores them.

Feser’s appeal to the “No Scotsman Fallacy” is completely irrelevant because I never stated categorically that popes could never misinterpret Scripture. Feser himself admits that non-definitive papal statements are subject to error; so, to be consistent, he should do the same with all the non-definitive papal statements he cites as “conclusive evidence” for the legitimacy of the death penalty.

The issue is not so much whether prior popes were in error in their scriptural citations. The issue is whether their scriptural appeals qualify as definitive and infallible judgments of the papal Magisterium. There are many examples of popes interpreting scriptural passages in a certain way that the Magisterium did not consider definitive. Bl. Pius IX, for example, in his 1854 bull, Ineffabilis Deus, proclaiming the dogma of the Immaculate Conception (1854), relies upon the Vulgate rendering of Gen 3:15 to speak of the Blessed Virgin Mary as she who crushes the head of the serpent with “her immaculate foot.” St. Pius X likewise understands the offspring of Gen 3:15 as Mary who crushes the head of the serpent with her virginal foot (see his 1904 encyclical, Ad diem illum, 33). This consistent magisterial interpretation of Mary as the offspring who crushes the head of the serpent relies on the intensive feminine pronoun, ipsa (she) found in the Vulgate. St. John Paul II, however, approved the revised Nova Vulgata in 1979, which changed the ispa to the neuter ipsum (it) to correspond to the neuter antecedent, semen (seed). Approved Catholic translations of Gen 3:15 today have the masculine pronoun, “he” as corresponding to the antecedent, “offspring” rather than “she.” Does this mean that Bl. Pius IX and St. Pius X were in error when they understood the offspring who crushes the head of the serpent as the Blessed Mother? No, this simply means that the subsequent Magisterium did not feel bound by these previous understandings of Gen 3:15. Moreover, it is true that Mary crushes the head of the serpent by her Immaculate Conception and her conception of the Redeemer. This truth, however, does not depend upon Bl. Pius IX and St. Pius X’s reading of the offspring in Gen 3:15 as the Blessed Virgin Mary.

Another example of a biblical text understood in a certain way by a pope is Gen 2: 21–23. Pope Leo XIII, in his 1880 encyclical, Arcanum, writes: “We record what is to known to all, and cannot be doubted by any, that God, on the sixth day of creation, having made man from the slime of the earth, and having breathed into his face the breath of life, gave him a companion, whom He miraculously took from the side of Adam when he was locked in sleep” (n. 5). Pope Leo XIII here refers to something “known to all,” namely that Eve was formed from the side of the sleeping Adam. Does this mean that Catholics must believe in the literal formation of Eve from the side of the sleeping Adam? Some might argue that this is the case, but St. John Paul II did not feel bound by this interpretation of Leo XIII. In his 1988 apostolic letter, Mulieris dignitatem, the Polish Pontiff states: “The second description of the creation of man (cf. Gen 2:18-25) makes use of different language to express the truth about the creation of man, and especially of woman. In a sense the language is less precise, and, one might say, more descriptive and metaphorical, closer to the language of the myths known at the time.”(n. 6).

I don’t dispute Prof. Feser’s right to ask for clarification regarding Pope Francis’ Oct. 11, 2017 statements about the death penalty. In fact, I commend him for seeking this clarification as long as he does so “in an evangelical spirit and with a profound desire to resolve the difficulties” (CDF, Donum Veritatis, 30). Feser, though, claims that submission to non-definitive teachings of the Magisterium is “presumptive rather than absolute.” The Congregation for the Doctrine of the faith, however, teaches that “the willingness to submit loyally to the teaching of the Magisterium on matters per se not irreformable must be the rule [regula]” (CDF, Donum Veritatis, n. 24).

It’s questionable, however, whether Feser has manifested such a submission even to the teachings of St. John Paul II on the death penalty. He and Prof. Bessette take note of John Paul II’s belief that the death penalty “ought very rarely if ever be resorted to,” but they describe this teaching as “a mistake, and a serious one” (p. 197). They justify their disagreement with St. John Paul II on the grounds that the Pope was only offering a “prudential judgment,” and Catholics are not bound to follow such prudential judgments. In my comments on Prof. Echeverria’s article I questioned whether Popes like St. Nicholas I (d. 867) and St. John Paul II (d. 2005) opposed executing criminals on merely prudential grounds. Feser doesn’t address this issue, but I think it’s becoming even more important during the pontificate of Francis. The claim that Pope Francis is only offering prudential arguments against the death penalty is not persuasive. In his March 20, 2015 letter against the death penalty, Francis argues that capital punishment “is contrary to the meaning of humanitas and divine mercy.” He also states that the death penalty “implies the denial of the love of enemies preached in the Gospel.” In his Oct. 11, 2017 address, Pope Francis emphasizes capital punishment’s opposition to the dignity and sacredness of all human life. These are not prudential arguments, but arguments derived from Catholic principles based on the Gospel.

I understand and appreciate Prof. Feser’s desire to respect Catholic tradition, but the teachings of Pope Francis on the death penalty—because they are teachings of the Roman Pontiff—also constitute Catholic tradition. Prof. Feser is concerned that the recent statements of Pope Francis on the death penalty might “undermine rather than reinforce the Magisterium’s claim to be a reliable interpreter of scripture.” This concern, however, is based on Prof. Feser’s belief that his understanding of Scripture points to a definite and irreformable tradition on the death penalty. Many people, including Pope Francis, do not seem bound by Prof. Feser’s understanding of Scripture. What Prof. Feser doesn’t seem to realize is that his claim that Pope Francis is “flirting with doctrinal error” also can serve to undermine people’s confidence in the papal Magisterium.

My main point is that it’s not clear that Pope Francis is contradicting any definitive, infallible teaching on the death penalty. Prof. Feser, however, seem to believe that the current Holy Father might be challenging “an irreformable or unchangeable teaching of the Church.” So we have two opinions: that of Prof. Feser and that of Pope Francis. Who is right? Because Prof. Feser believes he is right and Pope Francis is (seemingly) wrong, he is seeking clarification. This is Feser’s right and privilege. The clarification, though, can only come from the Magisterium, which does its work in communion with the Successor of Peter who happens to be Pope Francis. This means that the odds are stacked against Feser in his quarrel with the Roman Pontiff. In light of this, I feel more confident and peaceful supporting the views of Pope Francis than those of Dr. Feser on the death penalty.

I’m sure Prof. Feser will wish to challenge me on my choice in favor of Francis’ view over his. But should a Catholic ever be challenged for agreeing with the Pope? I suppose Feser will argue that such a Catholic should be challenged when the Pope is in error. This, though, begs the question whether Pope Francis is in error. So we’re back to square one about how to resolve claims that Pope Francis is in error on the death penalty. What should be clear by now is that the Roman Pontiff has a certain advantage in resolving such disputes over private scholars who challenge him. So unless and until Pope Francis concedes that Dr. Feser was right and he (Francis) was wrong, I’ll stick with the Roman Pontiff and trust in the Holy Spirit.

About Robert Fastiggi 2 Articles

Dr. Robert Fastiggi is Professor of Systematic Theology, at Sacred Heart Major Seminary in Detroit, Michigan. He has served as the executive editor of the 2009-2013 supplements to the New Catholic Encyclopedia and the co-editor of the English translation of the 43rd edition of the Denzinger-Hünermann compendium published by Ignatius Press in 2012.

40 Comments

  1. Nonsense.

    If Francis declares capital punishment intrinsically evil and changes the Catechism to reflect that, it can only mean that the Church did not have the truth for the preceding nineteen centuries.

    Proponents want to either say there was no doctrine and therefore anything goes or this “development” of doctrine was just slow in coming and going from a rare “yes” to an absolute “no” is not a change or contradiction.

    Fastiggi can keep his head in the sand and hold hands with Francis on their journey on the wide road.

    • Nonsense indeed. They will twist themselves into pretzels to save the credibility of a single wayward Pope, departing from the teaching of all his predecessors on this and other matters.

    • Indeed, Fastiggi et. al. have their heads in the sand. In fact, Fastiggi discredits himself with one simple sentence: “But should a Catholic ever be challenged for agreeing with the Pope?”

      And, no, Dr. Feser would not be “begging the question” by saying that a Catholic should question the pope when he is in error. It seems that Fastiggi’s basic principle is that “the Pope can never be in error”, while the Church says, paraphrasing, “a duly elected Pope should rarely err, but it is indeed a possibility.” Fastiggi’s sentence: “But should a Catholic ever be challenged for agreeing with the Pope?”, if answered “yes”, is not begging the question. It is following reasoning to a logical end, which would be determining where the pope (and Fastiggi) has erred. Fastiggi either himself does not understand “begging the question”, or he himself is begging it, or both.

      Sorry to say, but a lot of modern-day “theologians” are very poor and possibly heretical due to their lack of very basic philosophy.

    • Two areas where St. John Paul II pushed as far as the Church could go without crossing over the line of explicitly denying prior doctrine and destroying the credibility of the Church were in the integration of active adulterers into the Church and the exclusion of the death penalty as a practical matter. He saw the deep doctrinal and logical consequences of going further than he did. Pope Francis is not concerned about that: he’s ready to push the Church over the cliff. Because St. John Paul was moving in the same direction, Francis’ suppporters can claim he’s simply developing doctrine in line with St. John Paul II. This fails to account for the fact that St. JPII drew a line for a reason.

  2. “I understand and appreciate Prof. Feser’s desire to respect Catholic tradition, but the teachings of Pope Francis on the death penalty—because they are teachings of the Roman Pontiff—also constitute Catholic tradition”

    No. How much more ultramontane can you get?

    • Exactly. This is one of the pillars of his argument and is at most a half truth: it is only if Francis’ teaching is in accord w/ the prior magisterium can it be said to be “teaching” and possess any authority. One can apply Fastiggi’s argument to any other teaching which has not been declared by the extraordinary magisterium and there is no teaching you probably couldn’t overturn. His examples of changes in scriptural interpretations are not even close to what we are discussing, as though a change in pronoun is akin to “misinterpreting” that the death penalty is sanctioned by God?! That’s a heck of a change/misinterpretation!

      I don’t believe the Church has ever declared that something thought to be divinely revealed- including by the ordinary magisterium- turns out not to be so, and for good reason, of course. (In fact, I seem to recall that a commentary by Ratzinger says this would actually not be possible?) It is always the other way: matters thought to be “only” intrinsically connected with revelation are later said to be divinely revealed. Does Fastiggi et al. think this would be a dangerous precedent?

      • I think you are falling into the fallacy of composition, i.e. believing something to be true of the whole because it is true of the part. Just because earlier Catholic teaching on capital punishment has undergone change and development, does not mean that every teaching of the ordinary magisterium is subject to change. This is a non sequitur. Every case needs to be studied according to its own merits.

        • I suppose we Catholic sheep are to just believe and obey whatever the current Pope says, even if it is inconsistent with what all the prior popes said, or even with what Scripture says, even on something as critical as the death penalty. I guess that gives us hope that the next guy might come in and reverse what Francis says. But then the next guy might reverse that… and then the next guy might reverse that…

  3. This article highlights the papal positivism that Feser has already addressed: it is ultimately because Francis wills it, that it must be so. Therein, Fastiggi employs an essentially ad hominem attack: throwing out the “disobedient” card, turning it into an argument of Feser versus the Pope. No, it is Francis versus prior Popes, Councils, Fathers and Doctors of the Church. To use Fastiggi’s argument: if the easy majority of all the Church’s pronouncements over most of its history is in one direction and it is Pope Francis in 2017 who is alone, on whom would one put the odds? Also, if the Church was wrong all this time, then how can we know it is not wrong now, especially if Francis does not make an ex cathedra statement? Anything less would arguably not solve the issue. And, the matter still does largely involve saying that the prior declarations are in error, and not merely in scriptural interpretation. Furthermore there are metholodogical and logical errors here: claiming that because it has never been declared by an extraordinary act of the magisterium, ergo it is fallible; and supposing that because it was never declared extraordinarily, then there is no contradiction, as though anything not declared such is subject to reversal or would not still amount to prior error. It would also seem we are not talking just about a misinterpretation of scripture but a larger issue of claiming something is divinely revealed, and the two are not necessarily the same.

    This still fails to overcome the ultimate issue: the Church has taught, in at least some acts of the ordinary magisterium, that the death penalty is not intrinsically immoral (and which teaching is said to be divinely revealed/imputed to scripture, if even generally speaking.) Francis would now be saying it is immoral, if that is what he is saying. So, the Church would have formally taught- regardless of whether it was pronounced ex cathedra- it was okay to commit an intrinsic evil, among other things. That is indeed flirting with disaster. As Feser points out it is revealing that those arguing there is no contradiction resort to all kinds of claims, some contradictory, revealing the ultimate aim is not so much the truth but supporting an authority’s will merely because it is so. What bizarre times we live in when those supporting the Church’s Tradition are labelled as dissenters and disobedient, which we also see in other matters- communion for adulterers. That’s diabolical.

    • Pope Francis is simply developing the teaching of St. John Paul II on the death penalty, a teaching that was upheld by Pope Benedict XVI during his pontificate. We also need to take into account that there are over 5,000 Catholic bishops in the world today who are “teachers endowed with the authority of Christ” (Lumen Gentium, 25). I think the vast majority of these bishops agree with St. John Paul II and Pope Francis on capital punishment. To my knowledge, there have not been any bishops reacting to the Holy Father’s Oct. 11 address with the same concerns as Prof. Feser. Are all these bishops also “flirting with doctrinal error?” As for prior teaching on the death penalty (which was never set forth infallibly), I think the words of Pope Francis spoken on Oct. 11 are helpful: “In past centuries, when means of defence were scarce and society had yet to develop and mature as it has, recourse to the death penalty appeared to be the logical consequence of the correct application of justice.” Also, I don’t think I’m guilty of any “ad hominem” attacks on Prof. Feser. In fact, I commend him for asking for clarification from the Holy See. As for my “papal positivism” I believe my respect for the Roman Pontiff follows from what is taught by the Council of Florence (Denz.-H, 1307), the First Vatican Council (Denz.-H, 3050-3075), and the Second Vatican Council (Lumen Gentium, 25; Denz.-H, 4149). All Catholics are bound by these teachings on the papal office. This is not “papal positivism;” it is simply being a faithful Catholic according to the mind of the Church.

      • “In past centuries, when means of defence were scarce and society had yet to develop and mature as it has, recourse to the death penalty appeared to be the logical consequence of the correct application of justice.”

        I’m sorry, but neither you nor Pope Francis knows that these conditions do not obtain somewhere in the world today, or that they will never obtain again (for example, in a period of societal chaos after a nuclear war or a mass epidemic). What will we do then, with the suddenly pronounced new doctrine that the death penalty is “always” wrong and against the Gospel. And of course, he uses the words “appeared to be” which implies that it was not in fact permissible even then, just that all of his predecessors through the history of the Church were mistaken.

        And you are wrong about St. JPII and Benedict. Yes, they were against the death penalty, but they understood that the consequences of doing what Francis is now doing would be disastrous. That’s why they stopped where they did and why the Catechism reads like it does.

      • How is this a development of doctrine by Pope Francis? Previously, the death penalty is allowed for centuries, backed up by the greatest thinkers of the church. Then Pope JP II said that the death penalty should be done away with, since there are other ways to protect society. Fine. Ratzinger than issued the letter to the American bishops, saying it was a prudential matter that people could disagree with. Now, Pope Francis appears to be saying that it has suddenly become impermissible in all instances. That is not development, that is rupture.

    • You are right. We all need to look at the bigger picture to see what is really going on here. If the current Catechism was followed by governments, the death penalty would be exceedingly rare, if non-existent. All that is needed is a call to fidelity to the current teaching of the Church.

      But instead, we get a new teaching. Why? Ask yourself that, and think about it, and draw the logical conclusions. I hate to use the word, but Francis is very crafty. This is about using a sympathetic case with which many “conservative” Catholics might agree (abolishing the death penalty) to establish a new paradigm regarding the so-called “development” of doctrine. He wants to establish that it is okay to contradict prior teaching – even longstanding doctrinal teaching – based on “new understandings” that might come from the physical or social sciences or changed historical circumstances. Ultimately, for what issues might such a principle be useful? I’m just saying, if you can do it for the death penalty (and adultery) you can do it for homosexual acts. That’s where all of this is headed.

  4. My position is that three Popes in a row led the Church into a position (ccc 2267) that going forward will help people …murder victims, get killed in the tens of thousands throughout future history. Ccc 2267 inverts the meaning of deterrence to mean simply deterring the murderer you caught…not the thirty potential murderers out there who have not acted yet.
    No major Catholic voice including Popes …is talking about real countries, real murder numbers and real deterrence. The US Supreme Court from 1972 to 1976 did the work these Popes avoided. It compared pro and con death penalty deterrence studies and found that execution prevents future murders of a criminal nature not of a passion nature.
    The three worst countries right now on earth ( UN data) as to murder rates are Catholic and non death penalty for secular reasons….but papal opinion is making change there less probable.
    El Salvador 108.64 murders per 100,000…most murderous country on earth.
    Honduras. 63.75 murders per 100,000….second most murderous country on earth.
    Venezuela. 57.15 murders per 100,000
    Numbers 7 and 10 most murderous in the world are also Catholic and non death penalty…Belize and Quatemala.
    El Salvador 108.64 murders per 100,000
    Death penalty China is .74 ( not even 1) murder per 100,000.
    Japan affluence plus death penalty is .31 murders per 100,000….but China is more relevant to the third world. Japan without the dp but with widespread middle class salaries like Europe would have a low murder rate with or without the dp….like Europe.
    It is where poor people are in the millions that the death penalty noticeably saves tens of thousands of lives. That Catholicism can talk about this area without looking at real figures and the real horrible prisons in northern Latin America…the most murderous region on earth…that tendency to abstract debates that are endless is a red flag.
    SCOTUS’ 1976 finding that the death penalty saves lives of VICTIMS….joined to the UN world figures which show the same….should be all an intelligent person needs.

    • Yup. It makes all the sense in the world. Except in the bishop of Rome’s world.
      The Mass, the Sacraments, preaching the gospel are just too small potatoes for this pontiff. Abolish the death, penalty is the cry heard from Rome. Still another PC cause which will bring more applause from the political Left which adores this pope.
      And let there be no doubt, PF appreciates the applause no end.

      • Not in a data heavy area Brian where the work is very mathmatical. You’re thinking of abortion and gay rights….very non data issues.

  5. Moreover, in the Catholic Church itself, all possible care must be taken, that we hold that faith which has been believed everywhere, always, by all. For that is truly and in the strictest sense “Catholic,” which, as the name itself and the reason of the thing declare, comprehends all universally. This rule we shall observe if we follow universality, antiquity, consent. We shall follow universality if we confess that one faith to be true, which the whole Church throughout the world confesses; antiquity, if we in no wise depart from those interpretations which it is manifest were notoriously held by our holy ancestors and fathers; consent, in like manner, if in antiquity itself we adhere to the consentient definitions and determinations of all, or at the least of almost all priests and doctors.

    • Correct. I am left wondering what role the universal ordinary Magisterium has in Dr. Fastiggi’s thought. It seems that Dr. Fastiggi’s argument would be better supported by citing doctors, saints, and popes of the Church who actually agreed the current Pontiff’s recent remarks than by merely asserting that Feser hasn’t proven his case. Fastiggi could, for instance, check Dr. Feser’s book and see if he has any commentary on the passages he cites, or can reference some, many, or universal acceptance of his interpretation among the doctors of the Church, etc; but he doesn’t do that. That’s the only way we can determine if this current crusade against any use of the death penalty is supported by unchanging revelation, or is merely the latest novelty.

      The last sentence of the article is especially troubling. He goes from claiming Dr. Feser hasn’t definitively proven his case to claiming that the Pope in his private assertions ought to be believed over Feser because he is guided by the Holy Spirit. The Underpants Gnomes from South Park would be proud.

  6. If only theologians would get together, discuss these issues in detail, and come up with a joint statement clearly AND SUCCINCTLY summarizing the difference in their positions instead of publishing each back and forth and expecting us to read everything

    Just a friendly suggestion 🙂

  7. He is clearly contradicting the prior, consistent teaching of the Church. Whether he has the “power” to do so because the prior teaching is not “infallible” is an important issue, but not the only one. There is also the issue of credibility. We admit the possibility that the Church may be in error on “non-infallible” teachings with respect to faith and morals. But such a possibility is considered “remote.” By reversing his predecessors, Pope Francis undeniably says they were wrong for 2,000 years, and that he is right based on a “new understanding” of the Christian faith. First of all, I must say, the hubris – the utter lack of humility or respect for his predecessors – is truly astounding. Secondly, in my opinion this approach will do grave damage to the Church’s credibility. Will there be any reason to believe or obey anything the Church teaches non-infallibly, except for the fact that the current pope “says so” while we realize that any future pope can come in like a new political leader taking office and reverse the teaching of the last?

  8. Dr. Fastiggi –
    You have yet to explain how the use of lethal force to protect the innocent as in a just war, the duty of police to protect the innocent, and the legitimate resort to self defense by individuals, can survive this new teaching by pope Francis that the death penalty is never permissible and is always against the Gospel. If the imposition of the death penalty is “always against the Gospel” even when necessary to save innocent lives, and if no one can ever take a human life except God (as Pope Francis said in his speech) then how can the police, or the military, or an individual do so?

    When I raised these points before, you simply replied that they are not implicated and the only thing at issue is prohibiting resort to the death penalty when other, non-lethal means of protecting the innocent are available. I pointed out to you that your response to my comment made no sense because the current Catechism already rules out the death penalty except when absolutely necessary to protect innocent lives (meaning it should be practically non-existent in developed western countries). So that simply can’t be the reason for Pope Francis’ new teaching.

  9. “So unless and until Pope Francis concedes that Dr. Feser was right and he (Francis) was wrong, I’ll stick with the Roman Pontiff and trust in the Holy Spirit.”

    The current Pontiff will never admit that any of his ridiculous prudential statements and writings are wrong – re his refusal to answer the five dubia – and Fastiggi is free to poorly exercise his free will and follow this Pied Piper over the cliff to his own spiritual demise.

    “And why even of yourselves, do you not judge that which is just?” Luke 12:57

  10. Prof. Fastiggi comments “So unless and until Pope Francis concedes that Dr. Feser was right and he (Francis) was wrong, I’ll stick with the Roman Pontiff and trust in the Holy Spirit.” So, the exclusive criterion as to whether a Pope is incorrect is whether the Pope concedes he is incorrect? Tell that to Honorius. Prof. Fastiggi appears to suggest that prior teaching does not clearly bind a pope, so that a pope can simply declare himself to be correct in affirming that he is not bound. That is contrary to the very nature of the development of doctrine, and a complete positivist voluntarism regarding the papal office that makes a mockery of the intelligibility of doctrinal assent. It confuses canonicity with truth.

    • I don’t deny that a future pope after Francis can speak with papal authority. If a future pope were to affirm Feser’s position, I would abide by that decision. My position is rooted in what Lumen gentium, 25 teaches about the need to give “religious submission of will and intellect” to judgments of Roman Pontiffs even when they are not speaking ex cathedra. Contrary to what you say, popes are not bound by prior teachings of their predecessors unless the teaching was set forth infallibly. In 1483, Pope Sixtus IV placed a penalty on those who claimed it was a heresy to deny Mary’s Immaculate Conception (Denz.-H, 1426). Bl. Pius IX in 1854 did not feel bound by this decision. The Council of Florence, in its Decree for the Armenians, taught that the matter for the sacrament of Holy Orders was the handing over of the instruments connected with the sacramental order (e.g. the chalice and the paten for priests and the book of the Gospels for deacons; cf. Denz.-H, 1326). Pius XII, however, did not feel bound by this decision of an ecumenical council. Therefore, he decreed in 1947, that “the handing over of the instruments is not necessary for the validity of the holy orders of the diaconate, the priesthood, and the episcopate” (Denz.-H, 3859). As the CDF, in Donum Veritatis 24 points out, some theological matters require the filtering of time to distinguish what is permanent from what is subject to change. This is not “a complete positivist voluntarism.” It is simply an awareness that some matters are open to change or qualification and others are not. The matter in dispute is whether the liceity of the death penalty has been set forth by the ordinary and universal magisterium. This is a legitimate question, and those like myself who question whether it has been thus set forth should not be accused of “complete positivist voluntarism” as if such lables contribute to serious theological discussion. To be clear, Pope Francis, in his Oct. 11 speech, did not directly address the issue of whether or not the State has a theoretical right to execute criminals. He simply noted that such executions are contrary to the Gospel and the sacredness of human life. Prof. Feser is concerned that this implies an absolute denial of the liceity of the death penalty from a moral and legal perspective. I then raised the question whether the Church has infallibly addressed that issue. This is a perfectly legitimate theological question. I don’t understand why it should lead to your hyperbolic claims of “making a mockery of the intellibility of doctrinal assent” and confusing “canonicity with truth.” I hope you’ll reflect a bit more in the future before writing such intemperate things. As for Pope Honorius I, it is still an open question whether he actually adhered to any heresy or whether he was merely negiligent in allowing the Monothelities to exploit his words. It’s worth noting that in 641, three years after the death of Pope Honorius I, Pope John IV defended the orthodoxy of his predecessor in a letter to Emperor Constantine III. In this letter, John IV notes that Honorius’ point was that “there are not in [Christ], as in in us sinners, contrary wills of mind and flesh” (Denz.-H, 498). The great opponent of the Monothelite heresy, St. Maximus the Confessor (c. 580–662), agreed with John IV’s defense of Honorius in his letter to Marinus, a priest of Cyprus (see the 1911 article on St. Maximus in the Catholic Encyclopedia). While it is true that Constantinople III (680–681) included Honorius in its anathema against supporters of the Monothelite (one-will) heresy, we must remember that ecumenical councils can only pronounce infallibly on matters of faith and morals. What was infallibly condemned by Constantinople III was the Monothelite heresy. Whether Pope Honorius I actually adhered to this heresy is a historical question and not a matter on which the council could infallibly pronounce. Trying to determine which teachings of the ordinary Magisterium are definitive and which are not requires patience and hard work. In this respect, I commend Professors Feser and Bessette for their efforts. I am simply noting that not all agree with their conclusions and that it’s ultimately up to the Magisterium to decide such matters not private scholars. I believe my position is reasonable.

      • Robert,
        But you would follow Pope Francis and a future opposed Pope based on LG 25 etc. even though they are treating a data relevant topic…without data…and inverting the meaning of deterrence in ccc 2267 to mean deterring the aggressor you caught and him only. That is why millions of very smart people cannot convert to Catholicism. Yes …obey LG 25 in the purely spiritual topics that Popes are qualified for…but not in penology etc. where they give evidence of circumventing empirical process.
        SCOTUS took four years to find that the death penalty saves lives. They did the grunt work.
        UN data of world murder rates has two non or light death penalty, poor dominated areas as worst murderous and second worst murderous regions on earth…northern Latin America/ Carribean first….part of Africa second worst. It has death penalty dominant Asia as the safest area on earth from criminal murder…despite having millions of very poor people unlike Europe whose middleclass incomes militate against overt violence. If you transfer China’s murder rate of .74 per 100,000 to Brazil (26.74 per 100K), you would reduce Brazil’s murder victim yearly number from 50,000 to 1000. 49,000 human lives saved. But say from cultural differences, you could with the death penalty only reduce Brazil’s murder victims from 50,000 to 25,000. Then you are still saving 25,000 innocent lives which we say we value in the abortion issue….but to which we are blind in this issue.
        Why the difference? It seems that we are trying to distance ourselves from the 5000 Inquisition deaths by Popes going to the other extreme of circumventing or denouncing the death penalty. But the UN data and the SCOTUS verdict both say….we are about to be complicit in murder victim deaths far exceeding 5K.

      • Must we give “religious submission of will and intellect” to the papal statement in Amoris Laetitia “No one can be condemned forever, because that is not the logic of the Gospel”?

        • Fr Ruben if I may, since no one has responded, I wish to respond to your question regarding submission of the will to Pope Francis’ statement that eternal condemnation is contrary to the spirit of the Gospel, therefore no one is condemned forever. The doctrine of eternal damnation belongs to the Deposit of the Faith and cannot be changed. Any proposition related to the Gospels falls into the category of the 2nd Proposition of then J Ratzinger’s Doctrinal Commentary to Ad Tuendam Fidem. “Such doctrines can be defined solemnly by the Roman Pontiff when he speaks ‘ex cathedra’ or by the College of Bishops gathered in council, or they can be taught infallibly by the ordinary and universal Magisterium of the Church as a ‘sententia definitive tenenda’. Every believer, therefore, is required to give firm and definitive assent to these truths, based on faith in the Holy Spirit’s assistance to the Church’s Magisterium, and on the Catholic doctrine of the infallibility of the Magisterium in these matters” (Doctrinal Commentary 6). Apparently what the Pope said meets the standard of definitively intended. The incongruity is that it proposes what Christ said is not true. As Fr Spadaro has said Christ’s Gospel words are specific to time and place, cultural exigency and not necessarily permanent, which is speculation not fact. Nonetheless what Christ repeatedly taught on the eternity of hell is denied by this Roman Pontiff. The following sentence to the above quote, “Whoever denies these truths would be in a position of rejecting a truth of Catholic doctrine and would therefore no longer be in full communion with the Catholic Church” DC 6) also underscores existing truths contained in the Deposit. The Pontiff is in error. It raises the legitimate concern, at least to my understanding as to whether he is no longer in “full communion with the Catholic Church”.

      • The regard we owe the Papal office must include at least the possibility of recognizing a departure from the teaching of the Church by a Pope. And, at the very least, whether such a departure occurs does not repose solely on whether a pontiff recognizes or admits this. My objection to the formulation was very narrow: whereas, caveats regarding whether the teaching ought be viewed as infallible are directly to the point and I understand that there is a great desire on the part of many that this traditional teaching be abrogated. I will only say that if it can be abrogated, that the conditions for collegial infallibility are virtually inapplicable, and the teaching of Trent about the Fathers virtually inapplicable. And this is without noting the uniform papal magisterium with respect to Sacred Scripture, and morals, about which Pope Francis teaches in his statement that on this matter the Church has always been wrong, and wrong for reasons that seem–as alleged of all prior pontiffs–impious. Pius XII overly concerned with wealth? Merely legalistic? Etc. Your criticisms/objections to the claim that the validity of the death penalty is infallible teaching are necessary considerations irrespective one’s judgment of the truth of the matter. But the suggestion that until a pope admits a criticism to be correct we are necessarily better off concurring with the pontiff is a hazardous proposition which to my mind would imply a positivist voluntarism (unlike your more substantive concerns which are or ought to be more dispositive of the question, i.e.: if we are dealing with ordinary universal magisterium, then this would place limits on possible development, and if not, not).. Regarding the nature of the prior teaching, it is difficult to see how the conditions for collegial infallibility are not met by two millennia of constant teaching on so grave a moral issue, as likewise it would seem that the test of Trent regarding the Fathers and Scripture is met (i.e., there is no dissensus by the Fathers on this point, and when and where it is addressed, the penalty is affirmed to be valid). There seems every reason to view the matter as infallibly determined, and at a minimum, it is far from obvious that this is not the case. Further, there is no middle term with the tradition for the claim of development inasmuch as “sacredness of life” has never been understood in the tradition in any way that would imply that the penalty of death is contrary to it. But this last goes to the more substantive consideration of the fonts of the tradition.

        • It’s clear you are convinced by the arguments of Feser and Bessette. There are, though, other scholars who know the history of the magisterial statements on the death penalty just as well (if not better) and who hold to another position. For example, Anselm Günthör OSB (1911-2015) was professor of moral theology at Sant-Anselmo in Rome. He described the statements of the ecclesial Magisterium on the death penalty as “occasional assertions” which “do not represent a fully definitive position.” He said “we must not undervalue them, but we should not consider them to be unchangeable and perenially valid Magisterial statements.” Chiamata e risposta. Una nuova teologia morale Vol. III (Alta: Edizioni Paoline 1979) 557-558. It would require a much longer discussion than is possible here to elaborate on this position. Perhaps one will be forthcoming in another venue.

          • That is of great and intrinsic interest. I should adduce the multiple catechisms and the level of certitude that seems to be denoted in them as a proper accident, as it were, of the greater firmness of the teaching. Another explanation for the occasional character of many papal expressions is simply that the teaching is taken as ordinary and so as susceptible of common reference in a variety of circumstances. I.e., it was not viewed as something needing to be established in some special act, because the reading of Genesis and Romans in the tradition was already firm and fixed and held by the pontiffs over the years. And the Fathers and Doctors teach something much different than we see in the proposition that human dignity and the sacredness of life makes the death penalty “per se” contrary to the Gospel. If the new teaching is a development, the middle term is by no means apparent. However all these considerations need to be pursued and I will try to pursue the reference to Anselm Günthör OSB.

  11. The implication of Fastiggi’s defense that the Church’s teaching on capital punishment is neither of the deposit of faith nor is it an obvious precept (or permission) of the Natural Law. In which case, then no mere affirmation or denial of the liceity of capital punishment as being of the Gospel (or of Sacred Tradition) now suffices, as it must be given a justification through moral theology and evaluated accordingly.

    I have no real difficulty with the claim that the teaching on the liceity of capital punishment is not a revealed datum. But that it is not of the Natural Law, I need to see an actual argument for that.

  12. Barbaric. Christian Justice. Or Practical policy. Slavery and Capital Punishment [CP] were widely accepted institutions. The Apostle commended the subservient slave willing to suffer unjustly from his master. St Peter Claver spent his life caring for this human commodity. Today no one except Islamists consider it divinely instituted. Someone argued that CP is intrinsically evil. Aquinas believed society has the right to protect itself. Pope John Paul II considered a better, more Christian approach. Justice demands recompense. Virtually all consider retribution just for the unjust, that being gravely unjust warrants forfeiture of rights. Intrinsic rights. It appears on that score CP is warranted, but for who, for how serious or heinous a crime. Stats show CP is a deterrent. Does that suffice. Is taking a life compensated by good outcome. We recall Caiaphas. It appears that unlike slavery CP is not clear cut and that it may not be subject to dogmatic approval or disapproval. Perhaps [again] as wisely put by Wittgenstein, “Leave the damned thing alone”.

  13. This article is a very good example of an ultra-montaine view toward the person of the Pope. The underlying assumption is that every papal utterance is guided by the Holy Spirit to be free from error. History, as well as Church teaching, proves that this is certainly not true: Pope John XXII in the 14th century was in error on the question of the beatific vision. He was challenged by the theologians of the University of Paris, and only recanted on his deathbed. The private scholars who challenged the pope who were in fact correct! Earlier in the 6th century, the Third Council of Constantinople anathematized Pope Honorius along with the Monothelite heretics he had defended. Again, was the pope correct?
    It will do us a lot of good to think about these realities, and while not denying the doctrine of papal infallibility (God forbid!) we do need to rethink our assumptions on what the doctrine actually means.

    • Fr Ruben you outlined the matter quite well particularly regarding difference between infallible pronouncements and opinion. You imply that no Pontiff has definitively pronounced that the death penalty is intrinsically evil, which is true. John Paul II made appeal for consensus on the matter of prohibition during a Papal Mass 1999. In Evangelium Vitae he acknowledged justification of the death penalty “[Punishment] ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society”. I agree with this wonderful saintly Pontiff that if applied it must be done measuredly and in extreme cases, such as treason, betrayal of national security and perhaps not in individual crimes since the option of life imprisonment is a viable option.

  14. We know that the faith does not contradict logic, but rather the faith transcends it. I am a lawyer and former Marine who regularly deals with the criminal justice system, and with all due respect, it is difficult for me to understand how anyone seriously believes that it is logical to hold definitively that there can NEVER be an instance when the state is justified to use the death penalty in order to protect the common good. You do not have to be immersed in the realities that I am to know that is an unreasonable proposition.

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