Yes, traditional Church teaching on capital punishment is definitive

Given the “hermeneutic of continuity” emphasized by Pope Benedict XVI – and given especially the teaching of the First Vatican Council that popes have no authority to introduce new doctrines – the only way to reconcile them is to interpret Francis’s statements in a way that is consistent with the teaching of his predecessors.

(Image: Nils Huber/unsplash.com)

Scripture, the Fathers and Doctors of the Church, and the popes for 2000 years have taught that capital punishment can be legitimate in principle. In a series of articles at Catholic World Report – and at greater length in By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, which I co-authored with Joseph Bessette – I have argued that this teaching is irreformable. Neither Pope Francis nor any other pope has the authority to change it, consistent with the Church’s indefectibility. Prof. Robert Fastiggi disagrees, and in a recent article has tried to rebut my arguments. But his own arguments commit several fallacies.

Equivocation and selective quotation

There are two fundamental theological questions that arise in Catholic discussions of capital punishment. First, is capital punishment legitimate at least in principle? Or is it always and intrinsically wrong? Second, is capital punishment advisable in practice? Or are there moral or other reasons for the state to refrain from inflicting the death penalty, even if in theory it has the right to do so?

Both of these issues are addressed at length in By Man Shall His Blood Be Shed. But in my most recent Catholic World Report articles I have been addressing only the first issue, and that is also the issue I am addressing in the present article.

Now, one of the key considerations I have been emphasizing is that the Church maintains that Scripture is divinely inspired and cannot teach moral error. The Church also teaches that where the Fathers of the Church are unanimous on some question of Scriptural interpretation, Catholics are obliged to follow them. But the Fathers of the Church unanimously teach that Scripture sanctions the legitimacy of capital punishment at least in principle. The unavoidable logical implication is that Catholics are obliged to hold that the legitimacy in principle of capital punishment is a divinely inspired and thus infallible teaching. That alone suffices to show that no pope can reverse it. (Again, whether capital punishment is advisable in practice is a separate issue, which I am not addressing here.)

In response to this, Fastiggi alleges that “Feser’s claim of a unanimous consent of the Church Fathers on capital punishment is mistaken,” and notes that some of the Fathers had a “strong aversion” to its use. He quotes passages from Tertullian, Lactantius, and others which show that in their view the high moral standard to which Christians are called excludes the resort to capital punishment.

But this is simply irrelevant to the specific question that is at issue between Fastiggi and me. Yes, some of the Fathers were strongly opposed to the use of capital punishment in practice. But I never denied that. What I said is that they were unanimous that capital punishment is not always and intrinsically wrong, that it can be legitimate at least in principle. And that is true. This unanimous judgment includes Fathers like Tertullian and Lactantius, who – in other passages that Fastiggi does not quote (but which Joe Bessette and I quote in our book) – allow that capital punishment can at least in theory be legitimate.

Indeed, even E. Christian Brugger – who has written the most significant Catholic theological work in opposition to capital punishment, and who maintains that the practice is always and intrinsically wrong and not just ill-advised in practice – concedes that there was a “consensus” among the Fathers on the legitimacy in principle of capital punishment, and that this consensus was grounded in Scripture.

For Fastiggi to cite the passages he does as evidence against the claim that there was such a consensus is to commit a fallacy of equivocation – the fallacy of trading on the ambiguous use of words. Were some of the Fathers opposed to capital punishment? If we mean “opposed in practice,” the answer is Yes. But if we mean “opposed even in principle,” the answer is No. The texts Fastiggi cites seem to show what he claims they do only if we ignore this crucial distinction.

Fastiggi also quotes selectively from one of the Fathers who also happened to be a pope, namely Innocent I. Innocent, Fastiggi says, wrote with regard to capital punishment that “about these things we read nothing definitive from the forefathers.” What Fastiggi does not tell the reader, however, is that in the very same passage, Innocent says that the state’s right to inflict the death penalty has been “granted through the authority of God,” so that to oppose capital punishment absolutely would be “to go against the authority of the Lord.” That’s pretty definitive. Innocent’s language (he speaks of the state as bearing the “sword” as a “minister of God”) also makes clear that he has Romans 13 in mind as Scriptural warrant for this doctrine. When the entire passage is taken account of, then, it is clear that what the pope was saying the forefathers said “nothing definitive” about was the use of the death penalty in practice, not its legitimacy in principle.

Red herring

Fastiggi acknowledges that “the Bible provides some passages that support the death penalty.” But he also alleges that Scripture “contains other passages that argue against it.” And he says that the sanction of capital punishment found in the Mosaic Law “was subject to change” and that in any event “God did not always insist that the death sentence be carried out for crimes that deserved it.”

What Fastiggi does not seem to realize is that by conceding that “the Bible provides some passages that support the death penalty,” he has already ipso facto conceded the main point at issue between us. His other claims about Scripture, even if they were true, are completely irrelevant. For the Church maintains that Scripture cannot teach moral error. It follows that, since (by Fastiggi’s own admission) at least some passages in Scripture support the death penalty, it cannot be always and intrinsically wrong to resort to capital punishment. End of story.

If Fastiggi wants to give Scriptural arguments against resorting to capital punishment in practice, he is welcome to do so. I happen to disagree with the claim that Scripture would support such a position – see By Man Shall His Blood Be Shed for the reasons why – but that is not the specific question at issue here between Fastiggi and me. By raising this issue, Fastiggi is guilty of a red herring fallacy – the fallacy of changing the subject while appearing not to do so.

Fastiggi’s Scriptural arguments are in any event unconvincing. Joe Bessette and I have already addressed the passages he cites in By Man Shall His Blood Be Shed, and Fastiggi simply ignores most of the points we make there. He also makes a dubious appeal to Pope Benedict XVI in support of a reinterpretation of Genesis 9:6, which famously says: “Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.”

In particular, Fastiggi cites an exhortation in which Benedict stated: “God wants life, not death. He forbids all killing, even of those who kill (cf. Gen 4:15-16; 9:5-6; Ex 20:13).” Fastiggi comments that Benedict thereby “cites Genesis 9:6 as evidence that God forbids the killing of even those who commit murder.”

But this line of argument is problematic in several ways. First, in the exhortation in question, Pope Benedict was not addressing the subject of capital punishment. As the reader can easily verify by following the link above, the context in which he made the remark in question was a discussion of the idea of religious toleration. What the pope was saying was that the attempt to coerce others into adopting one’s own religious point of view sometimes results in violence and even killing, and that God does not approve of this. The pope was not even addressing the topic of criminal justice, the question of what sorts of punishments are appropriate, etc.

Now, it is standard methodology when interpreting papal texts to take context into account, and to be very cautious about extrapolating momentous implications about a particular subject from papal remarks made in passing in a discourse devoted to a completely different subject. But Fastiggi is blatantly violating this methodological principle in insinuating that Benedict’s remark implies some radical reinterpretation of Genesis 9:6 and, by implication, some revolutionary teaching vis-à-vis capital punishment.

Second, it is in any event highly misleading to imply, as Fastiggi does, that Benedict was “cit[ing] Genesis 9:6 as evidence that God forbids the killing of even those who commit murder.” For one thing, the pope does not pinpoint Genesis 9:6 specifically and then make an explicit comment about how to interpret it. Rather, he simply includes it in a string of Scriptural references that are implied to have some bearing – exactly what bearing, in the case of any of the individual Scriptural passages, is not specified – on God’s will vis-à-vis killing. Benedict never explicitly makes, concerning Genesis 9:6, the claim that Fastiggi attributes to him.

For another thing, it is quite ridiculous on its face to suggest that Genesis 9:6 teaches that “God forbids the killing of even those who commit murder.” This passage has for millennia consistently been understood by Catholic and Jewish exegetes to be approving of capital punishment. Even modern liberal exegetes who have tried to reinterpret it have only ever claimed that the passage is neutral about capital punishment, and they have had to strain credulity to go even that far (for reasons Joe Bessette and I explain in our book). To suggest, as Fastiggi does, that the passage is actually condemning capital punishment, is simply perverse. Quite frankly, it doesn’t pass the laugh test.

Nor is it remotely plausible to attribute such an interpretation to Pope Benedict XVI. As Joe Bessette and I note in our book, Cardinal Ratzinger (who went on to become Pope Benedict XVI) explicitly stated in 2004 that “it may still be permissible… to have recourse to capital punishment” and that “there may be a legitimate diversity of opinion even among Catholics about… applying the death penalty.” He could not have said such things if he believed that Genesis 9:6 absolutely forbade the execution of murderers.

Fastiggi tries to downplay the significance of this 2004 statement, but he has no good grounds for doing so. The statement was an official memorandum from the head of the Congregation for the Doctrine of the Faith – the chief doctrinal officer of the Church – sent to a bishop, Cardinal McCarrick, for the purpose of clarifying the implications of Church teaching for how the faithful ought to form their consciences when deciding how to vote. How could this possibly not be relevant to determining what the Church intends for the faithful to believe?

Moreover, in another statement we quote in the book, then-Cardinal Ratzinger also affirmed that Pope St. John Paul II did not alter the traditional Catholic doctrinal principle permitting capital punishment at least in principle. But again, he could not have allowed that Catholic teaching allows capital punishment in principle if he interpreted Genesis 9:6 the way Fastiggi says he does.

Fastiggi also alleges, bizarrely, that Pope Pius XII “understands Rom 13:4 differently” from the way Joe Bessette and I do, and in particular that Pius “does not see it as directly endorsing capital punishment.” Yet the passage from Pius that Fastiggi cites in support of this claim shows no such thing. Indeed, that passage doesn’t even mention capital punishment, much less assert that Romans 13:4 is not endorsing capital punishment. Pius isn’t addressing that specific topic there in the first place. As anyone who reads the passage in context can see, what Pius is actually addressing is the more general question of whether retributive justice (what Pius there calls the “vindictive” end of punishment) can still be justified by reference to Scriptural passages like Romans 13:4. And his answer is that it can be, because Romans 13:4 is, Pius says, concerned with matters of abiding general principle rather than with historically contingent juridical prescriptions.

Indeed, since Romans 13:4 refers to capital punishment, Pius is therefore if anything implicitly saying that capital punishment is of abiding relevance – the opposite of what Fastiggi claims the passage says. And as Joe and I show in the book, Pius in any event explicitly endorsed capital punishment in several other documents. It is rather odd for Fastiggi to ignore these explicit endorsements – which obviously support my position – while citing a dubious interpretation of Pius’s remarks about Romans 13:4 in support of his own position!

Special pleading

This brings us to Fastiggi’s treatment of various other papal statements on the subject of capital punishment, which, like his citations from the Fathers, is selective. As I noted in a recent Catholic Herald article, Pope Francis’s recent remarks on capital punishment are ambiguous. Some things he says seem to imply a reversal of the traditional teaching that capital punishment is legitimate at least in principle, whereas other things point in the opposite direction. As I noted in a recent Catholic World Report article, even the pope’s defenders don’t agree among themselves about what he is really saying. In By Man Shall His Blood Be Shed, Joe Bessette and I show that Pope Francis’s other remarks about capital punishment over the last few years exhibit a similar ambiguity.

Yet, despite this consistent ambiguity, Fastiggi says that while Pope Francis “has not yet condemned capital punishment as intrinsically immoral,” nevertheless “his mind and will on the subject are sufficiently clear.” Accordingly, Fastiggi implies, Catholics may well have to give “religious assent” to the proposition that capital punishment is intrinsically immoral.

Yet by Fastiggi’s own admission, for two millennia, all the other popes who have spoken on this subject have clearly and consistently affirmed that capital punishment is legitimate at least in principle. But Fastiggi alleges that their teaching “would not be acceptable now in light of recent Catholic teachings.”

In other words, in Fastiggi’s view, a Catholic is at liberty to reject the clear and consistent teaching of all previous popes for two millennia – not to mention Scripture and the Fathers and Doctors of the Church – yet is not at liberty to reject the ambiguous-at-best teaching of a single recent pope, even though it appears to conflict with all previous teaching. And this despite the fact that (as I showed in my previous articles in this series) the Church allows that popes can err when not speaking ex cathedra, and also allows theologians to raise questions about their non-infallible teachings in certain cases (where an apparent conflict with Scripture and all previous teaching is about as obvious a case as can be imagined).

Here too Fastiggi’s position is simply perverse. It also commits the fallacy of special pleading – the fallacy of applying an arbitrary double standard. Fastiggi can’t have it both ways. If he is going to insist that Catholics have to assent to even non-infallible exercises of the ordinary papal magisterium, then to be consistent he has to acknowledge that Catholics have to assent to the clear and consistent teaching of Innocent I, Innocent III, Pius V, Pius X, Pius XII, John Paul II, and all the other popes who have affirmed the legitimacy in principle of capital punishment. But if, on the other hand, he allows that a Catholic can reject these previous clear magisterial statements, then to be consistent he has to allow that a Catholic could also reject instead the more recent ambiguous statements of Pope Francis.

If Fastiggi says instead that all papal statements have somehow to be accepted, then he has to find a way to reconcile them all. But then, given the “hermeneutic of continuity” emphasized by Pope Benedict XVI – and given especially the teaching of the First Vatican Council that popes have no authority to introduce new doctrines – the only way to reconcile them is to interpret Francis’s statements in a way that is consistent with the teaching of his predecessors. And for the same reason – that is, preserving continuity of teaching – if, instead, Fastiggi admits that popes can err in their ordinary exercise of their teaching authority, then he will have to conclude that it is Pope Francis who has erred (if Francis teaches that capital punishment is intrinsically wrong), rather than that all of his predecessors (not to mention Scripture and the Fathers and Doctors of the Church) have erred.

The one course that is not open to Fastiggi is to hold that Pope Francis alone is right and all of his predecessors are wrong. Certainly Fastiggi has given us no non-question-begging reason to believe such a thing.

He also has not faced up to the central problem with his position. If Fastiggi is correct, then the Church has been teaching grave moral error – indeed, endorsing a species of murder – for 2000 years, and has also been badly misinterpreting Scripture for all that time. How Fastiggi can reconcile so extreme a position with the credibility of the Church, he does not tell us.

About Dr. Edward Feser 6 Articles

Edward Feser is the author of Five Proofs of the Existence of God and co-author of By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, both published by Ignatius Press.

23 Comments

  1. What many have been insisting but Fastiggi ignores.

    If Francis definitively declares this “intrinsically evil”, then the Church has taught error by omission in not knowing the truth for two millennia on the momentous moral issue of capital punishment.

    Life or death with no in-between.

    Where WAS the Church, Fastiggi??????

  2. Does it matter? Does it? Church teaching on a lot of things (marriage for instance) is definitive, but that’s not stopping the pope from going around them, why would anyone thing he wouldn’t do the same for capital punishment?

  3. This is a curious debate. Has the Holy Father forgotten the multitude executed by the church in the distant past? Some of them were then later even pronounced holy. One was Saint Anna.

    • Nobody was ever executed by the Church.
      The only “St Anna” I’m aware of was martyred by the pagan Goths.
      And nobody executed by the State after being found guilty of a crime by a Church tribunal has ever been declared a saint. St Joan of Arc’s trial was openly acknowledged at the time by all sides to be a farcical political-military show-trial by the English government, with one patsy bishop taking part. (Everything said and done in the whole trial was written down and these records are still extant and publicly available.) The moment the war was over, the Church convened a REAL church court which quickly quashed Joan’s conviction by the kangaroo court set up by the English government, and cleared her of any wrongdoing.

  4. [He also has not faced up to the central problem with his position. If Fastiggi is correct, then the Church has been teaching grave moral error – indeed, endorsing a species of murder – for 2000 years, and has also been badly misinterpreting Scripture for all that time. How Fastiggi can reconcile so extreme a position with the credibility of the Church, he does not tell us.]

    This is the key point. Fastiggi does not address it because he really can’t. But this does give us some insight into Pope Francis. He seems to think that all moral truths are historically and culturally conditioned. What was “valid” in one time and place may no longer be valid in a later time and place. It is the ultimate form of moral relativism – only based on “time” rather than “space” (i.e., rather than two “truths” existing simultaneously, they exist at different historical moments, and thus don’t contradict each other). If this goes forward, it could mean the complete dissolution of the Church’s moral teaching, because even what’s clear in the Bible might no longer be valid in 2017 – you name it – divorce, adultery, homosexuality, the death penalty – can be treated just like St. Paul’s admonition that women should be silent and cover their heads in Church.

  5. The decisive pooint is that there could be no power of capital punishment unless given by divine law. There is no divine law unless it is sufficiently promulgated. So any rule of divine law authoriting capital punishment must be at least de fide divina. If so, then it is irreformable.

  6. Feser takes Fastiggi to the woodshed. Trust me, anyone who takes on Feser is going to lose. Dawn Eden was wise not join Fasiggi in this fruitless endeavor.

      • I will be offering some responses to Prof. Feser soon. In the meantime, Catholic World Report readers can see Prof. Hart’s review of the Feser-Bessette volume here:https://www.commonwealmagazine.org/christians-death-penalty Prof. Hart is an accomplished Scripture and Patristics scholar. He describes the Feser-Bessette book in these terms: “Its arguments, philosophical and historical, are feeble. Its treatment of biblical texts is crude, its patristic scholarship careless. And all too often it exhibits a moral insensibility that is truly repellent.” I know these are strong words, but Prof. Feser himself often reacts to statements of his opponents, including Pope Francis, with words such as “absurd,” obscene,” and “perverse.”

        • CWR will soon be publishing a response by Dr. Feser to the recent reviews by Hart and Griffiths. I’ve read both of those reviews, and I found them seriously lacking on several counts. I was especially taken back by David Hart’s emotive, even nasty, personal attacks. I thought he embarrassed himself. Alas, Griffiths wasn’t much better.

  7. The big question here is that will the Church have the courage to proclaim what the truth is even if that means for 2000 yrs it has been wrong? Will it have the humility to do so, or will it just double down so that they will not look like they are wrong?

    While I personally do not believe in the death penalty, that is not to say that tyrants (Bin Laden) and the like who are killed by other means are not receiving justice. However, I can maintain this personal decision even if the church remains with reservations justifies the death penalty.

    What the most important part is here again is will the church embrace the truth and proclaim it regardless of what they look like in the eyes of Man.

    • And what is that truth, bumble bee? And how do you know that it IS the truth?

      We know what the truth is because the Church has taught it for 2000 years, ever since Christ told her He would send His Spirit to guide her into ALL truth.

  8. Few days ago Toto Riina passed away. He killed first time when he was 19 (sentenced 12years). Since then many many people was murdered by him or on his orders especially judge Falcone (judge has good security but Riina used so many dynamite that he destroyed highway with Falcone on it). Son of Riina is in prison becouse of murdered of course. Gossip (and his last proseciution) tells us that even in prison Riina leads secret negotiantions with italian goverment and leads his organisation of course. Where is the Problem? We arent society consisted from Maximilian Kolbe and Edith Stein only. We are ordinary people, we afraid to die. So we listen to those who could kill us we obey theirs orders. State without capital punishement isnt biggest bulldog in the City. Riina is. And he rulez. Even has diplomatic talks with goverment from prison (sentenced 26times for life). So prison is not enough. We need Capital Punishement. Imagine world where 19 years old Riina is executed, how many lifes saved!!!

  9. The practical issues with the death-penalty in the US have become quite gruesome – and usually after twenty years (!) waiting, and several stays. I find it sadistic. I would not personally do the killing. Neither therefore would I support contracting someone else to do the killing on my behalf, or on behalf of society. I suspect it is not good for the one who kills.I consider that the effect on the judicial killers should be studied.

  10. I’ve no doubt about Catholic teaching allowing in some circumstances for the death penalty. The reality is that too many people have gone to their deaths who were innocent. Look up the Innocence Project some tine to see what I mean. Also in some circumstances when two or more are to be convicted a deal will be made that let’s one criminal off light and the other dies. As well, there have been too many cases of people who are mentally feeble being put to death. There are people I think should die. But what makes me uncomfortable is that the state gets so many things wrong do we really want it to have power over life or death.

    • @ C. L. too much idealism. Democratic goverment makes mistakes and we can argue, we can pick up few lawyers with us, we can go to newspapers. When Riina makes mistakes you can do nothing. Oh I almost forget – Point 1. Riina makes no mistakes. Point 2. if Riina makes mistake take a look at the Point 1. (It was irony!!)
      You see this coin has only 2 sides. Who is the biggest bulldog in the City? Mafia or State? There is no third way. And State has law. We dont execute children even if they are killers. Mafia kills children even if they are innocent. This was just one example.
      But the most important is that CP isnt some kind of lottery. It isnt so that judge Lynch wakes up in the morning and says to his wife hey lets execute someone! Tell me number and I find someone with such social security number! And we hang him high!
      You see. I could say that we all are against CP but with exceptions for killers and savage rapers. We are all defending life from conception to natural death, but for killers natural death means rope and high tree.
      I can say it in another way: OK, lets stop CP, but under one condition – if killers stop killing. You can call it “mutual disarmament.” But look! Even now in Texas (where CP is working) if no one kills, no one is executed. What a surprise! Isnt it amazing? It is kind of miracle! We can abolish CP without abolishing CP.

  11. Dr. Feser is undoubtedly correct about the traditional interpretation of Scripture, Catholic Tradition and the hermeneutic of continuity, but the sad reality is that all this is no longer relevant in the Church of Pope Francis. Catholic intellectual culture is simply dismissed by this Pope.

    The real battle is of course about traditional sexual morality. There’s no longer any reasonable doubt that Francis’ wants radically get rid of it and that it is his intention to adapt the Church to the “anything goes” standards of the modern world. The death penalty issue is for him just a pretext and a try out in exploring how far he can go. If he can change Church doctrine on this “relatively harmless” issue, he’ll conclude that he can go on with the “bigger” one of sexual morality.

  12. “[Popes]John Paul and Francis have presumptuously imagined that they can annul the commands of God, and have taught that the commensurate punishment of crime ordained by God is morally equivalent to crime itself. While mature Christians exercised in moral discernment(Heb.5:14)easily see through the false teachings of John Paul and Francis, those teachings are accepted by the many people who have the ‘deceivableness of unrighteousness’ and no commitment to truth. Regarding abuse of the papal office, the Treatise on the Power and Primacy of the Pope says this: ‘The canons also clearly teach that a heretical pope is not to be obeyed.'” (from “A Refutation of the ELCA Social Statement on the Death Penalty,” page 9, endnote 26)
    http:// mcadams .posc .mu .edu /pdf/ Death _Penalty _Lutheran.pdf

  13. I wonder if Pope Francis is indirectly encouraging us to think for ourselves. He is undermining the idea of applying infallibility to the pope when he gives his opinion on something such as capital punishment. All of us have skin in the game.
    Vatican II’s Lumen Gentium 12 says: “The entire body of the faithful, anointed as they are by the Holy One,(111) [cf. 1 Jn 2:20, 27] cannot err in matters of belief. They manifest this special property by means of the whole peoples’ supernatural discernment in matters of faith when “from the Bishops down to the last of the lay faithful” (8*) [Cf. 1 Cor. 10: 17] they show universal agreement in matters of faith and morals. That discernment in matters of faith is aroused and sustained by the Spirit of truth.”

  14. “You must never accept a ransom payment for the life of someone judged guilty of murder and subject to execution; murderers must always be put to death.” (Numbers 35:31)

    “If you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer.” (Romans 13:4)

    “It is another part of the office of magistrates, that they ought forcibly to repress the waywardness of evil men, who do not willingly suffer themselves to be governed by laws, and to inflict such punishment on their offenses as God’s judgment requires; for [St. Paul] expressly declares that they are armed with the sword, not for an empty show, but that they may smite evil-doers…. This is a remarkable passage for the purpose of proving the right of the sword; for if the Lord, by arming the magistrate, has also committed to him the use of the sword, whenever he visits the guilty with death, by executing God’s vengeance, he obeys his commands. Contend then do they with God who think it unlawful to shed the blood of wicked men.” (Calvin’s Commentary on Romans)

    • Scripture and the Fathers on Capital Punishment

      In his article, “Yes traditional teaching on capital punishment is definitive,” Prof. Feser seems to assume that I have committed myself to the position that the death penalty is intrinsically immoral and it has been so throughout history. But I have never taken that position, and I agree with Feser that it’s not clear whether Pope Francis has himself taken that position in his Oct. 11, 2017 address. My position is more modest. I simply argue that there is no definitive, infallible teaching of the Church in favor of the legitimacy of capital punishment. I also argue that recent papal teachings of the death penalty merit religious assent on the part of the faithful even though they have not been set forth as definitive or infallible.
      With regard to the historical record of magisterial pronouncements on the death penalty, I agree with Fr. Anselm Günthör, OSB (1911–2015) who wrote, “the statements of the ecclesial Magisterium [on capital punishment] are occasional assertions and do not represent a fully definitive position; we must not undervalue them, but nor should we consider them to be unchangeable and perennially valid magisterial statements” (A. Gunthor, Chiamata e risposta: Una nuova teologia morale, Vol. III, Edizioni Paoline, Alta, 1979, pp. 557-558). Professors Feser and Bessette disagree, and they assemble what they consider convincing evidence that Church teaching on the legitimacy of the death penalty is definitive. The problem, though, is that they are not dispassionate historians but enthusiastic supporters of capital punishment. Their zeal to uphold the right to execute criminals seems to influence their reading of the Scriptural, patristic, and magisterial sources.

      With regard to Scripture, Prof. Feser claims that I have conceded the main point when I say “the Bible provides some passages that support the death penalty.” I don’t see what I have conceded because it’s clear that the death penalty is the prescribed punishment for numerous offenses in the Pentateuch (cf. Lev. 20). The question is whether these judicial laws of ancient Israel have permanent or only temporary value (cf. St. Thomas Aquinas, ST I-II qq. 99–100, 103–105). The Catholic Church teaches that the books of the Old Testament contain some things that are “imperfect and temporary” (Vatican II, Dei Verbum, 15). Prof. Brugger and others have pointed out that the Old Testament permits divorce, which the CCC 2384 calls “a grave offense against the natural law.” Prof. Feser’s response is that God permitted but did not command divorce. He did, though, command the death penalty in the Old Testament, and God cannot command something evil. The Old Testament, however, also shows God commanding “herem warfare,” which involves the total destruction of cities and people (e.g. Deut 20: 16–17 and 1 Sam 15:1–3). Such commands, though, did not stop the bishops at Vatican II from stating: “Any act of war aimed indiscriminately at the destruction of entire cities of extensive areas along with their population is a crime against God and man himself. It merits unequivocal and unhesitating condemnation.” (GS, 80; cf. CCC, 2314). So there is precedent for the Catholic Church condemning something God commanded in the Old Testament. What God commanded in the Old Testament is not necessarily justified today.

      Feser keeps insisting that Gen 9:6 is a sanction for the death penalty. In the Feser-Bessette volume we are told: “It is absurd to deny that this Scripture is “intended precisely as a sanction of the penalty of death” (p. 100). Benedict XVI, however, in n. 26 of his 2012 exhortation, Ecclesia in Medio Oriente, cites the passage in support of this statement: “God wants life, not death. He forbids all killing, even of those who kill (cf. Gen 4:15-16; 9:5-6; Ex 20:13).” Feser says it is “perverse” for me to suggest that this passage suggests the condemnation of capital punishment. All I said, though, was that “Benedict XVI cites Genesis 9:6 as evidence that God forbids the killing of even those who commit murder.” That is what the passage says. How is this “perverse?” The French original reads: “Dieu veut la vie, non la mort. Il interdit le meurtre, même celui du meurtrier (cf. Gn 4, 15-16; 9, 5-6; Ex 20, 13).” Perhaps a more literal translation might be: “God wants life, not death. He forbids murder, even of the murderer” The problem with this, though, is that French law makes a distinction between a murder (meurte) with malice and a “murder” (meurte) in self-defense (un meurte par autodéfense). In English, though, we would never speak of killing in self-defense as a murder. This argues in favor of “killing” rather than “murder” as the translation. The key point, though, is that Benedict XVI uses Gen 9:6 in the context of God wanting life not death even for the one who kills or murders. Benedict XVI recognizes Gen 9:6 as having a life-protecting meaning (just like Gn 4, 15-16) rather than a death-demanding one.

      Prof. Feser’s attempt to evade the way Pius XII understands Rom 13:4 is equally unconvincing. As I noted in my Nov. 10, 2017 article, Pius XII, in his Feb. 5, 1955 address to the Italian Association of Catholic Jurists, cites Rom 13:4, but he does not see it as directly endorsing capital punishment. Instead, he says that this text and other sources “do not refer to the concrete contents of individual juridical prescriptions or rules of actions, but to the essential foundation itself of penal power and its immanent finality.” Feser argues that this passage doesn’t even mention capital punishment; therefore, it cannot be used as evidence that Romans 13:4 does not endorse capital punishment. Feser seems to miss the point. Pius XII specially says that Rom 13:4 and other sources “do not refer to the concrete contents of individual juridical prescriptions or rules of actions.” The death penalty, though, would be a prescription or rule of action. Pius XII, therefore, does not see Rom 13:4 as referring to capital punishment or any other rule of action. Instead he sees this passage as referring to “the essential foundation itself of penal power and its immanent finality.” This is precisely one way Prof. Megivern understands Rom 13:4 when he writes that “the power of the sword” in this passage “is a symbolic way of expressing the legitimacy of the state’s general penal authority” (J. Megivern, The Death Penalty, 1997, p. 17). So Pius XII in his Feb. 5, 1955 Address understands Rom 13:4 in agreement with Megivern and not Feser.

      With regard to understanding Scripture from a Catholic perspective, it’s important to recall what Pius XII states in his 1943 encyclical, Divino Afflante Spiritu, n. 47: “[T]here are but few texts [of Sacred Scripture] 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.” We also need to recall what Vatican II teaches in Dei Verbum, 12: “For all of what has been said about the way of interpreting Scripture is subject finally to the judgment of the Church, which carries out the divine commission and ministry of guarding and interpreting the word of God.” So it’s ultimately up to the Church’s Magisterium—not Prof. Feser—to decide whether Sacred Scripture supports the legitimacy of the death penalty today.

      I am well aware of Feser’s belief that the Church Fathers were unanimous in believing that that capital punishment was legitimate in principle if not in practice. My point was that this issue was not their focus. Rather, they were concerned with how Christians should regard the death penalty. Apart from this, I don’t believe the Feser-Bessette volume demonstrates a unanimous consent. In his Commonweal review Prof. David Bentley Hart shows that some of the patristic sources that Feser and Bessette cite do not actually demonstrate an acceptance of the legitimacy of capital punishment. If readers doubt this, they should look up Origen’s Contra Celsum 8, 65 and St. Gregory Nazinanzus, Oratio XVII, 6 to see if there is anything in these texts specifically affirming the legitimacy of capital punishment in principle. All these texts show is an acknowledgement of the general penal power of the state. The same is true of Athenagoras’ Plea for Christians, 2 and 3 cited on p. 112 of the Feser-Bessette book. This text only demonstrates an acknowledgement of the harsh punishments of the Roman state; it says nothing about whether such punishments are legitimate in principle. Beyond these examples, we must consider that some early Church documents reject even lay Christian participation in capital punishment (e.g. the Council of Elvira, canon 56; the Apostolic Tradition 16, 9; and the canons of the Synod of Rome for the Gauls under Pope Damasus I [r.366–384] cf. PL 13, 1190, Chap. V, 13). If there was an acceptance of the legitimacy of capital punishment in principle why would these Church documents reject even lay participation in executions?

      More to follow in future posts

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