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.
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!
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.