Hot Air vs. Capital Punishment: A Reply to Paul Griffiths and David Bentley Hart

Griffiths’ review in First Things of By Man Shall His Blood Be Shed is rich in condescension, high in dudgeon, and largely devoid of substantive engagement with the book’s arguments. And Hart’s review in Commonweal is so rhetorically over-the-top and dishonest that the effect is more comical than offensive.

(Cover of "By Man Shall His Blood Be Shed" [Ignatius.com]; Steam [Daniele Levis Pelusi/Unsplash.com)

As lawyers like to say, when you can’t win a case by pounding the facts or pounding the law, pound the table instead. Having lost the philosophical and theological arguments pertaining to the death penalty, some critics of By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment are doing just that. Paul Griffiths’ review in First Things is rich in condescension, high in dudgeon, and largely devoid of substantive engagement with the book’s arguments. David Bentley Hart’s review in Commonweal is so rhetorically over-the-top and dishonest that the effect is more comical than offensive. Joseph Bessette and I have, it seems, struck a nerve.

Hart begins by reassuring his readers that, despite his opposition to capital punishment, he is as unsympathetic to murderers as the next man. He sheds no tears for the Nazis executed by the Allies; he admits to having desired the deaths of those who killed a friend of his. The trouble with Joe Bessette and me, Hart says, is that our book “exhibits a moral insensibility that is truly repellant,” and indeed “would exhaust the ruthlessness of Torquemada.” Similarly, Griffiths, while acknowledging the grave evil of which some criminals are guilty, simply cannot fathom the “bloodthirstiness” with which, in his telling, we would respond to it. Joe and I, it seems, are simply beyond the pale of respectable discourse on this subject.

The reader is bound to wonder what horrors are to be found advocated between the covers of By Man Shall His Blood Be Shed. Public executions? Drawing and quartering? Death to pickpockets and jaywalkers? But anyone expecting a mashup of Pulp Fiction and Thomist theology would be disappointed, because in fact the conclusions Joe Bessette and I defend are pretty humdrum. We argue that traditional Catholic teaching rules out condemning capital punishment as always and intrinsically wrong. But we acknowledge that Catholics can argue that in practice it is better not to resort to it, and that recent popes and earlier generations of Christians have so argued. We happen to disagree with this judgment, and advocate keeping capital punishment on the books for the most heinous murderers. But we do not advocate execution for lesser offenses, and we explicitly reject severe methods of execution. Our main emphasis is on the point that the rhetoric of abolitionists has in recent years become too extreme – Hart and Griffiths only confirm this with their unhinged remarks – and that the other side of the tradition also deserves attention. Essentially our position on capital punishment is that of Pope Pius XII – that is to say, the one common in mid twentieth-century Catholicism. How all this merits a comparison with Torquemada, I have no idea.

Ignoble lies?

But the ad hominem attack is the first refuge of those unable to marshal facts and logic in their defense, and character assassination is one form of killing Griffiths and Hart seem to approve of. Hart is especially egregious in this regard, and in three places in his review one is tempted to charge him with deliberate misrepresentation. First, Hart writes:

Feser and Bessette twice adduce the career of Giovanni Battista Bugatti – the official executioner of the Papal States who from 1796 to 1865 executed 516 convicted criminals, by decapitating them with an axe or a guillotine, or slitting their throats, or crushing their heads with a mallet, or having them drawn and quartered – as some sort of proof of the Catholic Church’s commitment to the essential justice of the death penalty. On neither occasion do they express the slightest alarm at, or disapproval of, either the number or the savagery of these killings. (Emphasis added)

But in fact, after we summarize Bugatti’s career and methods, Joe and I go on explicitly to add that “we certainly would not defend the harsher methods of execution employed in the nineteenth century” (p. 12). Moreover, we never cite Bugatti’s specific methods as “proof” of any doctrinal point. Indeed, the first time we refer to him, our point isn’t doctrinal at all. Rather, we simply use him as an illustration of how different Catholic and papal attitudes about capital punishment were just over a century ago. The second time we refer to him, the context is doctrinal, but what we claim has doctrinal relevance is not anything about Bugatti himself, but merely the fact that the Papal States long countenanced execution as a legitimate punishment. Even here, we don’t present this as amounting by itself to a “proof” of anything, but simply as one consideration among others.

By greatly exaggerating the significance we attribute to Bugatti, however, Hart is able to paint us as bloodthirsty and as presenting theologically weak arguments – a “twofer” that is rhetorically effective, but intellectually dishonest.

Second, Hart makes the bizarre allegation that Joe Bessette and I “even take Innocent III’s decision to permit the execution of unregenerate Waldensians as proof that the legitimacy of capital punishment is ‘a matter of Catholic orthodoxy’ (emphasis theirs).” But this purported argument of ours is a straw man manufactured by Hart nearly out of whole cloth. Here is the actual passage from our book from which Hart takes the quote about Catholic orthodoxy:

In 1210, Pope Innocent III required adherents of the Waldensian heresy, as a condition for their reconciliation with the Church, to affirm a number of doctrinal points which included the following:

“We declare that the secular power can without mortal sin impose a judgment of blood provided the punishment is carried out not in hatred but with good judgment, not inconsiderately but after mature deliberation.”

The significance of this passage is difficult to overstate. The context – again, a set of demands made to a heretical group as a condition for reconciliation – makes it clear that the pope held affirmation of the legitimacy in principle of capital punishment to be a matter ofCatholic orthodoxy. (pp. 123-24)

As the reader can see, what we actually and very clearly say is that the doctrinal statement that Pope Innocent required the Waldensians to agree to is what makes capital punishment a matter of orthodoxy. We don’t say anything about the “execution of unregenerate Waldensians,” either here or anywhere else in the book.

Now, since Hart evidently understands English, one wonders whether he simply opted here to fib. But perhaps a lie so easily exposed is unlikely. The only plausible interpretation of Hart that is more charitable, however, is that he is guilty of criminally sloppy scholarship. In any event, what would motivate such a caricature is clear. By falsely attributing to us the thesis that approval of the execution of heretics is a matter of orthodoxy, Hart is once again able to make us appear bloodthirsty, and to be advocating theologically questionable arguments.

A third remark of Hart’s that is either a deliberate falsehood or reflects amazingly shoddy scholarship is his assertion that “the claim Feser and Bessette advance is not simply that Catholics may approve of capital punishment, but that they must, and that it actually borders on heresy not to do so.” In fact, however, in our book we repeatedly make statements like the following:

The Church has certainly never taught that the state must in all cases execute those guilty of the most serious crimes. She has never insisted on applying the death penalty. (p. 11)

We fully acknowledge that faithful Catholics may nevertheless argue that in practice the death penalty ought not to be applied under modern circumstances. (p. 12)

A Catholic may still oppose the use of the death penalty on prudential grounds. (p. 15)

We do not expect all Catholics to agree with our judgment that capital punishment is called for with some regularity even under contemporary circumstances. Like Pope Benedict XVI, we believe there can be legitimate disagreement among Catholics on this subject. (p. 210)

We also approvingly quote Fr. John McDonald’s view that:

A Catholic is entitled to argue… that in the present state of our civilization the use of the death penalty is not a practical necessity, and to that extent… may give his support to any movement for its abolition which is inspired by humanitarian motives. (p. 135)

Our claim vis-à-vis orthodoxy is, again, simply that Catholic teaching does not allow for the view that capital punishment is always and intrinsically wrong, wrong of its very nature and not merely because of circumstances. That is a far cry from saying that every Catholic must positively approve of capital punishment in practice on pain of heresy.

Scripture and the Fathers

This distinction between the question of whether capital punishment is permissible in principle and the question of whether it ought to be used in practice is one that Joe Bessette and I put great emphasis on, and to which we return again and again in the book. The reason is that some contemporary Catholic opponents of capital punishment – most significantly, “new natural law” theorists like Germain Grisez, E. Christian Brugger, and Christopher Tollefsen – have taken the view that capital punishment is always and intrinsically wrong, and not merely ill-advised in practice. Indeed, they have gone so far as to maintain that capital punishment is not only contrary to the higher moral demands made of Christians in particular, but even contrary to natural law. To counter this extreme view, Joe and I have a lot to say about the way Scripture, the Fathers and Doctors of the Church, and the popes have clearly and repeatedly affirmed the legitimacy of capital punishment at least in principle.

Yet Griffiths and (especially) Hart mainly ignore this crucial distinction and the way it informs what our book has to say about the Bible, the Fathers, and other ecclesiastical sources. Griffiths accuses us of “flat-footed” readings of Scripture and of magisterial documents. He offers no examples. In fact we engage in detail with alternative readings of the relevant texts, and offer arguments against them and for our own interpretations. Contrary to Griffiths’ insinuation, we do not rest content with mere proof-texting. But perhaps by a “flat-footed reading,” Griffiths simply means “a reading that Paul Griffiths disagrees with.”

Hart alleges of our book that “its treatment of biblical texts is crude [and] its patristic scholarship careless,” and unlike Griffiths he purports to give examples. For instance, Hart accuses us of a “misuse of Genesis 9:6” – which famously says “whoever sheds the blood of man, by man shall his blood be shed” – but he completely ignores what we say at pp. 99-101 of our book about the proper interpretation of this passage. In any event, Hart does not seem to deny that Genesis 9:6 teaches that capital punishment can be legitimate at least in principle. Yet that was our main point in citing it.

Hart also accuses us of a “misreading” of Romans 13:4, which says that governmental authority “does not bear the sword in vain” and “is the servant of God to execute his wrath on the wrongdoer.” Hart writes:

According to [Bessette and Feser], Paul’s words have been “traditionally understood as a straightforward affirmation of the right of the state to execute criminals.” This is false (despite the several misrepresentations of patristic sources they later produce). Even if it were true, however, it would constitute nothing more than an unfortunately prevalent error. The passage almost certainly says nothing about capital punishment at all.

To call this tendentious would be an understatement. First of all, the most that Hart is entitled to say about the passage is that some biblical scholars, and modern ones at that, have proposed reinterpreting the passage as not referring to capital punishment. But this reinterpretation is by no means either universally accepted, or accepted with confidence by all who propose it.

For example, C. K. Barrett, in his well-known commentary on Romans, says that Paul’s reference to “the magistrate’s sword… recalls the technical term ius gladii, by which was meant the authority (possessed by all higher magistrates) of inflicting sentence of death” (p. 227). Ernest Best’s commentary remarks that Paul’s reference to the sword is meant to indicate that governmental authorities “have the right to enforce their punishments even to the extent of putting men to death” (p. 148). John Murray’s commentary on Romans concludes:

The sword is so frequently associated with death as the instrument of execution (cf. Matt. 26:52; Luke 21:24; Acts 12:2; 16:27; Heb. 11:34, 37; Rev. 13:10) that to exclude its use for this purpose in this instance would be so arbitrary as to bear upon its face prejudice contrary to the evidence. (pp. 152-53)

John Ziesler’s Romans commentary is less peremptory, but still argues that:

[I]n general terms, the reference is clearly to the power of life and death held by the judiciary… Cranfield… points out that at this time the term ius gladii, ‘law of the sword’, was used only in military contexts. It is therefore possible that we should think of the ability of the army to suppress rebellion, rather than of capital punishment in a civil setting. Yet this does not fit the general atmosphere of local and civil administration at all well. (p. 312)

Joseph Fitzmyer, though he is less confident that Romans 13:4 intends a reference to the death penalty, nevertheless acknowledges that “the expression… ‘carry a sword’ could be a symbol for capital punishment” (p. 668). Douglas Moo’s commentary on Romans argues that “the phrase does not… directly refer to the infliction of the death penalty,” but then immediately goes on to add that “in the context of first-century Rome, and against the OT background… , Paul would clearly include the death penalty in the state’s panoply of punishments for wrongdoing” (p. 802). Even Brugger – who, again, maintains that capital punishment is always and intrinsically wrong and who advocates reinterpreting Romans 13:4 to make it compatible with this view – admits in his book on capital punishment that “the phrase ‘bear the sword’ could be a symbol for the state’s power to inflict the death penalty” (p. 70, emphasis added), and that not all biblical scholars would agree with his preferred alternative interpretation.

More examples could be given, but that much suffices to show that Hart gives a false impression of the state of modern Scriptural exegesis of this passage. He is, of course, free to argue against the view of scholars like the ones quoted, but to pretend that Joe Bessette and I are guilty of a straightforward exegetical error is dishonest. No less dishonest is Hart’s pretense that our interpretation is anything other than the traditional one. The Fathers of the Church routinely cited Romans 13 as a reference to the death penalty. For example, Tertullian writes:

The vengeance which is inflicted among men upon the homicide is really as great as that which is imposed by nature. Who would not prefer the justice of the world, which, as the apostle himself testifies, “bears not the sword in vain,” and which is an institute of religion when it severely avenges in defence of human life? (Treatise on the Soul, Chapter 33, emphasis added)

Origen writes:

We are not so mad as to stir up against us the wrath of kings and princes, which will bring upon us sufferings and tortures, or even death. For we read: Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resists the power, resists the ordinance of God. (Contra Celsus, Book VIII, Chapter 65, emphasis added. The latter sentences are quoted by Origen from Romans 13: 1-2.)

Ambrose, responding to a query about the death penalty, refers to:

[T]he Apostle’s authority on this matter: “For not without reason does he carry a sword, who gives judgment,” for he is the avenger of God against those who do evil

There are some persons – outside the Church, however – who do not admit to communion in the divine sacraments those who believe in capital punishment. Some stay away on their own accord. They are praised and cannot be admonished in so far as we observe the authority of the Apostle and do not refuse them Communion. (Letter 90, to Studius, emphasis added)

Pope Innocent I, also responding to a query about capital punishment, says:

[T]he forefathers… had remembered that these powers had been granted by God and that for the sake of punishing harm-doers the sword had been allowed; in this way a minister of God, an avenger, has been given. How therefore would they criticize something which they see to have been granted through the authority of God? About these matters therefore, we hold to what has been observed hitherto, lest we may seem either to overturn sound order or to go against the authority of the Lord. (Letter to the Bishop of Toulouse. The italicized words are clearly an allusion to Romans 13.)

In one of his letters, Augustine quotes Romans 13:2-4 and then several lines later says:

How great is the perversity of those who cling to their own unrighteousness, and yet find fault with the severity of the civil powers! You answer, perhaps, that Christians ought not to persecute even the wicked. Be it so; let us admit that they ought not: but is it lawful to lay this objection in the way of the powers which are ordained for this very purpose? Shall we erase the apostle’s words? Or do your manuscripts not contain the words which I mentioned a little while ago? (Letter 87, emphasis added)

Referring to “the sword” and its connection to capital punishment, Augustine also says elsewhere:

There are some exceptions made by the divine authority to its own law, that men may not be put to death. These exceptions are of two kinds, being justified either by a general law, or by a special commission granted for a time to some individual. And in this latter case, he to whom authority is delegated, and who is but the sword in the hand of him who uses it, is not himself responsible for the death he deals. (City of God, Book I, Chapter 21, emphasis added)

Even Brugger – who, again, regards capital punishment as intrinsically evil and who thus has every incentive to minimize positive patristic remarks about the practice – acknowledges that there was a “patristic consensus” on the legitimacy in principle of capital punishment, and that this consensus reflected “the precepts of the Old Testament, together with the commonly accepted interpretation of Romans 13:1-4” (p. 95). Indeed, Brugger concludes that this biblical evidence constituted in the view of the Fathers “a knockdown argument against rejecting the death penalty” as intrinsically immoral (Ibid.).

Now, Hart makes a great show over how strongly opposed Fathers like Athenagoras, Origen, Gregory of Nazianzus, and Ambrose were to Christian participation in the actual practice of capital punishment – as if this were something Joe Bessette and I, in our purportedly deficient scholarship, carelessly overlooked. But in fact Joe and I ourselves note repeatedly in the book that some of the Fathers were opposed to capital punishment in practice. Indeed, we explicitly mention by name Athenagoras, Tertullian, Lactantius, Origen, Cyprian, Gregory of Nazianzus, Ambrose, and Augustine as Fathers who were opposed to making actual use of it.

That this in no way conflicts with the other things we say about the Fathers is clear when one keeps in mind the distinction between the question of whether capital punishment is wrong in principle, and the question of whether it is best avoided in practice. For when we cite the Fathers, Joe and I are addressing the first question, not the second. We are saying that the testimony of the Fathers demonstrates that it is contrary to orthodoxy to maintain that capital punishment is always and intrinsically wrong. We never make the claim that the testimony of the Fathers suffices by itself to show that capital punishment ought to be favored in practice. But Hart’s criticisms would be just only if we had used the Fathers in this latter way.

Natural law

Griffiths and Hart also object to the natural law arguments we put forward in defense of capital punishment. Griffiths claims that when followed through consistently, what such arguments entail is Kant’s position that the state must execute every offender who merits it. Joe Bessette and I do not draw this conclusion, but Griffiths alleges that we have no principled reason not to do so. Yet the only rational alternative to doing so, he claims, is abolitionism. It’s all or nothing.

But this is a false choice. What the natural law position we defend entails is not that we rigidly must always give an offender what he deserves, but rather that there is a presumption in favor of doing so. But this presumption can be overridden. The reason is that justice exists for the sake of the good of society and of the offender. In general and in the abstract, what is good for society and the offender is that offenders get what they deserve. This includes capital punishment, since (as we argue in the book) it not only deters crime, eliminates the threat of the most dangerous offenders, and upholds the majesty of the law, but also often spurs repentance in the offender. But there may nevertheless be cases, or even general classes of case, where the ends of securing the good of society and of the offender are better served by showing mercy. Determining when it is better to show mercy rather than inflicting just deserts requires a careful weighing of various moral and practical considerations, and this is where prudential judgment enters in. (In fact even Kant, in The Metaphysical Elements of Justice, recognized exceptions to the general rule that those worthy of death should be executed.)

This middle ground position is not only our position, but it is precisely the Church’s traditional position. Hence, though Griffiths is a Catholic, when he denies that such a middle ground position is possible, he is implicitly criticizing not only us, but traditional Catholic doctrine as well. How he would reconcile such a criticism with the credibility of the magisterium of the Church, he does not tell us.

Griffiths and Hart also feign doubt about whether anyone can know what just deserts are. But we needn’t achieve mathematical exactitude, nor be able to settle every case, to know (for example) that a fine can be a fitting punishment for vandalism, or that armed robbery deserves a more severe punishment than petty theft. If Griffiths and Hart doubt this, then they owe us a justification of such radical skepticism, and an account of how they can reconcile it with any workable system of criminal justice, never mind one that countenances the death penalty. For thousands of years public officials and ordinary men and women on juries have been doing precisely what Griffiths and Hart think is impossible, viz. determining which punishments are fitting for which crimes. They have, of course, by no means done so perfectly. Unjust punishments have often been meted out. But that simply does not entail that we have no understanding of what justice requires. To draw such an inference is like concluding that, since our senses often deceive us, we should never trust them.

Then there is Griffiths’ claim that, at least in the American context, when the state executes an offender it “performs an incoherent act.” How so? Because, says Griffiths, the American system is “committed in theory to serve and protect the inalienable rights of its citizens” and “those inalienable rights include the right not to be killed.” But there are at least four serious problems with this argument. First, it proves too much. While it is true that the Declaration of Independence refers to “unalienable rights,” and includes the right to life among them, it also includes the right to liberty. Hence, Griffiths’ argument, followed out consistently, would entail that in the American context the state performs an “incoherent act” even when it imprisons offenders, and indeed when it inflicts any punishment at all, since all punishments in some way or other infringe on an offender’s liberty. Presumably Griffiths would not want to do away with the entire system of criminal justice. In that case, though, he cannot consistently appeal to the Declaration as a justification for abolishing capital punishment, specifically.

Second, precisely because Griffiths’ interpretation would have such absurd consequences, it is hardly plausible to suppose that Jefferson and Co. meant for the term “unalienable” to be understood the way Griffiths understands it. Surely what they had in mind is the idea that an innocent person cannot have his basic human rights taken from him by the state. A guilty person, however, forfeits his rights by virtue of his offense, and for all Griffiths has shown, this can include the right to life no less than the right to liberty. (Indeed, the same generation that gave us the Declaration of Independence enacted capital punishment laws in every one of the original thirteen states and in the First Congress. The Bill of Rights itself recognizes that citizens may be deprived of “life, liberty, or property” as long as there is “due process of law.”)

Third, it is in any case far from obvious that the presence of these words in the Declaration would make the American system “incoherent” even if we accepted Griffiths’ interpretation of them. For while the Declaration expresses certain widely shared moral ideals, it does not follow that they have, simply by virtue of being in the Declaration, any legal or constitutional significance. While an explicit or implicit contradiction in the law itself would plausibly ground a judgment to the effect that there is “incoherence” in the U.S. system of criminal justice, a mere reference to widely shared and vaguely defined moral sentiments hardly provides a compelling argument.

Fourth, what matters ultimately is not what the Declaration says, but what natural law reasoning actually establishes. And what it establishes, as we argue in the book, is that an offender can forfeit his right to life, just as he can forfeit his right to liberty. Human law, including the American system of criminal justice, is answerable to natural law, not the other way around.

Griffiths and Hart both object to our inclusion of gruesome details of the crimes committed by offenders executed in recent years in the U.S. But this was necessary. For one thing, Joe Bessette and I aimed to show that, contrary to the abolitionist claim that the American justice system is arbitrary, in fact it is only the very worst of the worst who are executed in the U.S. today. It is precisely the details of such crimes that lead juries to make the decisions they do, and anyone commenting on the subject of capital punishment should, like these juries, take such details into consideration.

For another thing, Joe and I sought to illustrate how disproportionate mere life imprisonment is to certain offenses. Fancying himself a mind-reader, Griffiths dismisses this justification as “disingenuous.” Our real motivation, Griffiths alleges, was to stir up the reader’s emotions. However, telepathy remains scientifically dubious and the ad hominem remains fallacious. Awful luck for Griffiths, but there it is.

Catholic orthodoxy

Griffiths alleges that there has been a “development” of doctrine on capital punishment under Pope St. John Paul II and his successors. Hart, though he is Eastern Orthodox rather than Catholic, alleges that the arguments Joe and I defend have been “decisively ruled out by the magisterium” of these recent popes, so that “if any position… is to be regarded as contrary to Catholic orthodoxy, it is [Feser’s and Bessette’s].” We “twist and turn in every direction trying to evade” this outcome, Hart says, but “to no avail.”

Now, Joe Bessette and I devote over fifty pages of our book (specifically, pp. 144-196) to a detailed analysis of the statements of Pope St. John Paul II, Pope Benedict XVI, and Pope Francis on this subject. Making reference to a variety of magisterial statements, we carefully explain what a development of doctrine is and how it differs from a reversal of doctrine or a prudential judgment. We put forward a battery of arguments for the conclusion that the teaching of John Paul II can only plausibly be understood as a prudential judgment rather than either a reversal or development, and we respond at length to the arguments of theologians who claim otherwise. We also show, via a variety of arguments, that the statements of the pope’s successors are also to be understood as prudential judgments rather than either reversals or developments of doctrine. (I have since commented on Pope Francis’s most recent statements here and here.)

What do Griffiths and Hart have to say in response to these arguments? Absolutely nothing. They entirely ignore them, and merely assert, with no argument whatsoever, claims that Joe and I have already painstakingly refuted in our book. Moreover, no sooner does Hart accuse us of heterodoxy than he concedes that:

Admittedly, the Catholic Church has never committed itself doctrinally to the abolition of the death penalty, and it is true that magisterial interpretations of doctrine are somewhat fluid and of less than dogmatic authority.

How Hart would reconcile these concessions with his accusation of heterodoxy, he does not tell us.

Hart’s main theological objection to our position, however, has nothing to do with recent papal teaching. It is rather this:

Let us grant, for argument’s sake, that the death penalty is indeed a just and proportionate response to willful murder. So what? That has never been the issue for Christians, for the simple reason that the Gospel does not admit the authority of proportional justice, as either a private or a public good. The whole of the Sermon on the Mount, for instance, is a shocking subversion of the entire idea. Christ repeatedly and explicitly forbids the application of such punishment… Again and again, the New Testament demands of Christians that they exercise limitless forgiveness, no matter how grievous the wrong, even in legal and public settings. And it insists that, for the Christian, mercy always triumphs over judgment. (Emphasis added)

Now, the problems with this set of claims are so obvious and so serious that it is almost embarrassing to have to call attention to them. First, if Hart’s position were followed out consistently, then we would have to abolish all punishments for all offenses. Again, Hart claims that the Gospel requires “limitless forgiveness, no matter how grievous the wrong, even in legal and public settings.” So, it’s not just a matter of not executing murderers. We also have to refrain from punishing murderers at all, and from punishing rapists, bank robbers, kidnappers, embezzlers, et al. too. The jails should be emptied, and every cheek turned to every sadist who would slash it with a switchblade, let alone slap it. Let justice never be done, though the heavens fall.

Now, either Hart would endorse such a policy or he would not. If he would, then he owes us an explanation of how such permissiveness is compatible with even the most rudimentary social order. If he would not, then he owes us an explanation of how he can rule out capital punishment, but not other punishments, consistent with the extreme principles to which he is committed. Until he resolves this dilemma, his objection is not a serious one, but just empty rhetoric.

Second, why Hart thinks any Catholic should take his interpretation of the morality of the Gospel seriously, he does not tell us. After all, Catholic moral theology has always clearly distinguished between the demands of private morality and the demands of public order, and has recognized that Christian moral principles are to be applied in different ways in these different contexts. (To forestall caricatures, notice that that is not to say that they don’t apply to the public context, but only that the way they apply is different.) For example, the individual Christian citizen should forgive those who harm him, and can even opt not to seek redress. But even a government guided by Christian principles, though its treatment of criminals should be informed by the demands of mercy, cannot entirely forego punishment, for this would both endanger others and encourage the offender in his evildoing. Punishment serves a medicinal function insofar as it protects society and encourages repentance. In this way, punishment can itself sometimes be what true mercy requires. Catholic theology has also always carefully distinguished between the natural order and the supernatural order, and maintains that the latter builds on the former and does not obliterate it. In particular, the demands of the Gospel by no means cancel out or replace the demands of natural law, including the demands of justice. Rather, they add to the latter.

By contrast, Hart’s position seems essentially to abolish the natural order altogether, and entirely to replace it with the supernatural order. The Gospel, he appears to think, does not merely add to the requirements of natural justice, but “does not admit the authority” of the latter at all. He also seems to think that the moral demands of the Gospel apply in exactly the same way to both the private sphere and the public sphere. Now, this is not only not the Catholic position, it is not even the Eastern Orthodox position. It is merely David Bentley Hart’s personal theological position, and he simply asserts it without argument. Why Hart would think such a blatant exercise in begging the question constitutes a serious response, I have no idea.

Griffiths and Hart have reputations as serious theologians, and not without reason. Yet when all the begged questions, ad hominem attacks, straw men, and other fallacies are swept aside, their objections to By Man Shall His Blood Be Shed are exposed as entirely hollow. If this is the best the abolitionist side has to offer, then it’s got nothing.

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.

20 Comments

  1. David Bentley Hart is living proof that the rejection of Natural Law leads to nothing other than the arbitrary willfulness of individuals and their political cohorts.

    Hart rejects the Natural Law, and in his writings rejecting it he is dismissive to the point that the next step in the argument, if you disagree with him, will be the unleashing of his very refined form of rhetorical contempt.

    But what Hart doesn’t seem to appreciate is that beneath the thin veneer of his exquisite rhetoric is still only mere contempt.
    Alas for Hart, when you polish a turd, the result is still a turd.

    • Well, … on certain subjects, at least. His historical works are superb. “Atheist Delusions” is the best book of its type ever published.

  2. I love it when these verbal food-fights break out and then people break out their most prized pithy remarks and stuff like that to indicate that they know what is being discussed when commenting.

  3. I know that nearly all involved in this debate are “academics” so it would be unfair to paint with a broad brush. However, I will say that all those taking our Pontiff’s side in this argument, in my opinion, are displaying a profound absence of a sense of justice. A profound lack of justice screaming out as needed in this, again, increasingly brutal world we claim is civilized. You live in a dream world protected by, well, rough men, as the saying goes. Your bloodless acceptance of brutality does not reflect well on your moral duty, generally unpleasant, to protect the innocent.

  4. “Intrinsically evil.”

    Declared, and there is no recourse for the Church to reconcile the past.

    When those two words were uttered in regard to capital punishment, this went from a very important discussion on the theological underpinnings of the death penalty to a real questioning of the divine assurance of infallibility concerning the Catholic Church in Faith and Morals.

    When Griffiths, Hart, Fastiggi and their adherents purposely downplay or avoid this altogether, they don’t appear to understand what it means for the Church to be in doctrinal error – even if not technically and formally defined – for nearly two millennia on a momentous moral issue.

    • Where has Pope Francis used the term intrinsically evil in reference to capital punishment? If you can’t produce such a reference then all your assertions are but speculations. Your claim that the Pope Francis is in doctrinal error is your opinion, which has only the weight of your opinion.

      • The Holy Father called the death penalty contrary to the Gospel and human dignity in itself no matter how its carried out. This accords with the definitions given to a genus of intrinsic evil described by JPII in Veritatis Splendor 80. That’s at least where the argument for doctrinal difficulty would begin. Pax.
        “Si deve affermare con forza che la condanna alla pena di morte è una misura disumana che umilia, in qualsiasi modo venga perseguita, la dignità personale. E’ in sé stessa contraria al Vangelo perché viene deciso volontariamente di sopprimere una vita umana che è sempre sacra agli occhi del Creatore e di cui Dio solo in ultima analisi è vero giudice e garante”
        https://w2.vatican.va/content/francesco/it/speeches/2017/october/documents/papa-francesco_20171011_convegno-nuova-evangelizzazione.html

  5. There should be 100 Ed Fesers writing throughout the Church and publishing on this topic.
    There isn’t because modern Catholic theology men are somewhat feminine….per Plato’s warning in Book 3 of the Republic…a surfeit of culture to the denigration of sports will feminize males to varying degrees. Hence Pope Benedict defends no dubia Cardinal like Burke whom a million traditionalists thought he would defend. Had they read Verbum Domini closely in section 42, they would have seen the future of Benedict.. Most Catholic theologians get ill reading the Old Testament…to include the previous two Popes. God killed Dathan and Abiram and families through Moses’ lips in the OT and likewise killed laity…Ananias and Sapphira but not their families through Peter’s lips in Acts 5. God killed Jezebel via the eunuchs and had dogs eat her carcass and God likewise killed Herod by an angel in Acts 12 and had worms eat his carcass. God killed 1.1 million people via the Romans as His ax in Jerusalem in 70 AD ( Josephus…Tacitus says 600K) and not even the Church discusses that. Feser is up against a tidal wave of the non masculine in Catholic theology circles….a tidal wave. Doubt about Judas’ damnation (2 previous Popes)….hope in an empty hell ( Von Balthasar, Rahner, Bishop Barron)….let Saddam Hussein take Kuwait ( St. JPII)….ccc #2267 / deterrence is only about the murderers you captured because we’re too lazy to research real conventional deterrence….ie multiple potential murderers throughout the country. Feser is waking up to find himself among papal trendy folk. After 1454’s Romanus Pontifex by Pope Nicholas V, such theology folk were pro slavery until 1537 with Pope Paul III prudently denouncing four previous Popes without naming them….then trendy folk but not Portuguese slavers were against enslavement of new natives. Trends involve careers. Feser works for a public college. Careers affect current doctrine at times and in some not all cases.

  6. Hart loves to quote from papal and conciliar documents, without mentioning to his readers that he is not Catholic. He lectures Catholics about being unfaithful to Catholicism (as he sees it) though he himself is Orthodox. Just a bit inconsistent, it would seem.

  7. The implications of Hart’s position are obvious: It is morally indefensible for a Christian to use ANY type of violence in defense of the innocent. So if a murdering rapist should break into Mr. Hart’s home, he MUST stand by and watch his family slaughtered.

  8. Both Professors Hart and Feser have what one my call aggressive writing styles. Leaving their styles aside, I double checked some of Prof. Hart’s criticisms of the patristic section of the Feser-Bessette volume. Prof. Hart is indeed correct that some of the citations of Feser and Bessette (e.g. Origen, Contra Celsum 8, 65; and St. Gregory of Nazianzus, Oratio XVII, 6) do not support the legitimacy in principle of capital punishment. These passages only acknowledge the power of the state to punish crime with force. Professors Feser and Bessette also do not take into account the fact that Pope Innocent I, in 405, was asked about both torture and the death penalty. If the decision of Innocent I was definitive about the death penalty, then it would also need to be definitive about torture. Pope St. Nicholas I, however, when he wrote to the Bulgarians in 866, told them that “neither divine nor human law’ allows the use of torture for extracting confessions (Denz.-H, 648). Vatican II, in Gaudium et spes, 27, condemns such torture along with other wicked acts as “infamies” that “poison human society” and are “a supreme dishonor to the Creator.” Vatican II’s condemnation of torture has been reaffirmed by St. John Paul II, Benedict XVI and Pope Francis. So Innocent I’s 405 approval of Christian public officials inflicting torture has been superseded by subsequent magisterial teachings. If this can be done with regard to his approval of torture as legitimate, it can also be done with respect to the death penalty. Even if the death penalty is not condemned as “intrinsically evil,” the application of it today can be condemned as “cruel and unneccessary” (St. John Paul II, 1999) and “contrary to the Gospel” (Pope Francis, 2017). The Catechism tells us that the “traditional teaching of the Church does not exclude recourse to the death penalty, if this is the ONLY POSSIBLE way of effectively defending human lives against the unjust aggressor” (CCC, 2267). Unlike the condemnation of direct abortion which is “unchangeable” (CCC, 2271), the tradition of the Church on the remote possible use of the death penalty is not qualified in the Catechism as “unchangeable.” I am not persuaded by the arguments of Prof. Feser in defense of his position that the Church’s recognition of the death penalty’s legitimacy is “definitive.” If time permits, I’ll try to explain this more in a subsequent posting. I really don’t believe Pope Francis needs to condemn capital punishment as “instrically evil” in order to condemn its application today in very strong terms. Prof. Feser seems to believe that if the Church accepts even the most remote possibility of the use of the death penalty, then any teaching against its use is only “prudential.” This is not true at all. In order to make prudential judgments there must be principles that guide these judgments. St. John Paul II (EV, 56) and the CCC, 2267 lay out these principles. Because of the diginity of the human person (a principle not a prudential judgment) the death penalty may soley be used if it is “the ONLY POSSIBLE way of effectively defending human lives against the unjust aggressor.” Feser and Bessette seem to reject these principles as “a mistake, and a serious one” (p. 197 of their book). They try to justify their rejection of what St. John Paul II and the CCC teach as disagreemts only with a prudential judgment of the Magisterium. This is where they show their lack of understanding of what is needed with respect to prudential judgments. There is a need for guiding principles. Unforturnately in their book they manifest disagreement with the Magisterium’s clearly taught “principles” that are meant to guide judgments regarding capital punishment. This is why their book is a departure from present magisterial teaching. To appeal to the authority of past popes is insufficient. Where in Catholic teaching is such an appeal justified? Many Feenyites make similar appeals as well as Catholic ‘traditionalists” who reject Vatican II’s “Dignitatis humanae.” I don’t doubt the sincerity and good intentions of Prof. Feser and his followers, but I really think they need to manifest religious assent to the present teaching of the papal Magisterium (cf. Vatican II, LG, 25), which follows the “hermeneutic of continuity” with the teachings of Vatican II on the dignity of the human person.

    • I don’t doubt your sincerity, either, but you are clearly sincerely wrong.

      “To appeal to the authority of past popes is insufficient. Where in Catholic teaching is such an appeal justified?”

      It isn’t “just” the authority of past popes, it’s the authority of past popes, of the Bible, and of Tradition.

      I also get a sort of bitter amusement out of the “Oh, but gosh, *now* people and circumstances are so different that merely imprisoning them is sufficient to protect others from their evil aggression.” Historic snobbery at its best. You’d have had a better chance of convincing me that pitching someone in an oubliette was sufficient to protect others from their evil, than that today’s prisons contain it (in the sense of keeping it away from others).

      It is blatant that the death penalty was *not* considered intrinsically wrong by popes for centuries. You can’t claim that saying it *is* intrinsically wrong is not a change.

      As for torture, by the way: If it was known for certain that a particular person knew the hiding place of, and how to deactivate, a bomb that he had placed that would kill thousands of innocent people, and refused to tell where it was – do you say that torture would still be wrong?

    • Apealing to Vatican II or JPII is an appeal to past popes. This debate more than anything makes me doubt the legitimacy or meaning of magisterial teaching at all. I already had problems with JPII’s negation of the rights and role of the father (and by extension of all men) compared to what other popes have taught. Why believe JPII when he says the husband is subject to his wife and not Pis XI when he says the wife owes her husband obedience? Now we have Francis doing these rhetorical gymnastics to allow objective adulterers to communion and make capital punishment supposedly contrary to the Gospel.

  9. Though just one of those pew guys, lt does not seem fair to refer to the fester writing style as similar to that of hart. It has the u.timate result of very much wondering about fastiggiand his combos project here.(

  10. Even the lowly pew sitter should try to be proper. It was overly in haste, should have been Dr. Feser, Dr. Hart and Prof. Fastiggi. But I still wonder about the professor’s real motive here. Like Fr.(Dr.) P. Morello said quoting L. Wittgenstein, “leave the damn thing alone”.

  11. A minor point: Principles flow from logic. If capital punishment is legitimate in principle, and I believe the arguments affirming are valid, then executions can not be excluded on at least four of the five grounds cited above for not using this penalty. German and Japanese war criminals, by at least a factor of one hundred escaped the penalty because we wanted both countries as allies against communism. This was certainly a practical decision at the time but hardly just. Subsequent war crimes in many areas would seem to indicate that the lack of possibly paying the ultimate penalty for capital crime did little to discourage such crime. The 9-11 mastermind has yet to be tried and terrorism continues unabated. Modern day theologians and their hangers on twist themselves into pretzels to try to argue the moral case for abolition of capital punishment. Unfortunately for them, the logic of the crime itself nullifies their stance.

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