Scripture, the Fathers and Doctors of the Church, and all popes before Pope Francis have consistently taught that capital punishment can in some circumstances be legitimate. In some recent remarks, Pope Francis appeared to suggest that this traditional teaching ought to be overturned, and that capital punishment is always and intrinsically wrong. In a recent article in Catholic Herald, I analyzed the pope’s remarks, noting that some of them do indeed appear to propose such a reversal, though others seem to point in the opposite direction.
I also noted that if this is what the pope is proposing – and it is not certain that it is – then he would be flirting with doctrinal error, something that is possible when a pope is not speaking ex cathedra, though it is extremely rare. For the legitimacy in principle of capital punishment is an irreformable or unchangeable teaching of the Church. Joseph Bessette and I assemble what we claim to be conclusive evidence to this effect in our recent book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment. (A few of the salient points are briefly summarized in an earlier Catholic World Report article of ours.)
The pope’s remarks have been controversial. For example, theologian Eduardo Echeverria has noted some of the problems with them in an article at Catholic World Report, as has P. J. Smith at First Things. But the pope also has some defenders. Interestingly, however, it turns out that they do not agree on why or how the pope’s remarks are defensible.
Development of doctrine?
On Twitter, Catholic journalist Austen Ivereigh responded to my Catholic Herald piece with the remark: “This betrays a hugely deficient understanding of development of doctrine. It doesn’t even quote relevant parts of pope speech on topic [sic].” Ivereigh does not explain exactly what is deficient (“hugely” or otherwise) about my understanding of the development of doctrine (though of course, he could hardly have done so in a mere tweet). I quoted a number of key magisterial texts which illustrate how the Church teaches that a genuine “development of doctrine” can never be a reversal or overturning of doctrine. How Ivereigh would reconcile these texts with an overturning of traditional teaching on capital punishment, we are not told.
However, the “relevant parts” of the pope’s speech to which Ivereigh thinks I paid insufficient attention include, I would speculate, papal remarks like:
Here we are not in any way contradicting past teaching, for the defence of the dignity of human life from the first moment of conception to natural death has been taught by the Church consistently and authoritatively.
Ivereigh’s idea, perhaps, is this: The Church has always taught the dignity of human life, and the pope’s proposal is that this dignity absolutely rules out capital punishment under any circumstances. There is no contradiction between the claim that human life has dignity and the claim that capital punishment is always wrong, so that to draw the latter conclusion from the former is a genuine development of doctrine and not a contradiction of it.
But if this is Ivereigh’s reasoning, it is fallacious. For a genuine “development of doctrine” has to take account of the entire body of the Church’s traditional teaching, not just some part of it considered in isolation. For example, in hammering out the doctrine of the Trinity, the Church considered both the truth that there is only one God and the truth that the divine Persons are distinct. The Trinitarian conception of God is precisely a reconciliation of these ideas. Hence if the Church were to deny the distinctness of the Persons in the name of respecting the teaching that there is only one God, this would not be a “development” of past teaching but a rejection of it. It would be a matter of pitting one part of the deposit of faith against another, rather than preserving the whole. Indeed, the very term “heresy” derives from the Greek word hairesis, which means the “choosing” or “taking” of one part of orthodox doctrine while rejecting other parts.
Similarly, while the Church has always affirmed the dignity of human life, she has also always taught that an offender guilty of the gravest crimes can in some cases legitimately be executed. That these truths are perfectly compatible is obvious when we remember that there is a crucial moral distinction between the innocent and the guilty. Thus did Pope Pius XII teach that a murderer has, by virtue of his crime, “deprived himself of the right to live.” Thus did even Pope St. John Paul II, who was no fan of capital punishment, explicitly reaffirm even in the 1997 revision of the Catechism he promulgated that “the traditional teaching of the Church does not exclude recourse to the death penalty” under certain conditions. Thus did even he qualify his claims about the dignity of human life in Evangelium Vitae, teaching that “the commandment ‘You shall not kill’ has absolute value when it refers to the innocent person.” Such qualifications are necessary if we are to do justice to the whole of the deposit of faith.
(I am not, by the way – and contrary to what some critics of my Catholic Herald piece seem to think – suggesting that capital punishment is as central to Catholic doctrine as the Trinity is. That is not the point of the analogy. I am merely using Trinitarianism as an illustration of how a genuine development of doctrine works.)
Correction of error?
Now, another defender of Pope Francis’s remarks, theologian E. Christian Brugger, takes a very different tack. Brugger is a longstanding advocate of the view that capital punishment is always and intrinsically wrong. In a National Catholic Register story about the controversy raised by the pope’s remarks, Brugger is quoted as saying:
I do not think that a principled rejection of the death penalty can rightly be called a development, at least not if we are using Newman’s understanding of development of doctrine as an organic unfolding of an antecedent idea. It seems to me more correct to call it a correction of a past view that was false. (Emphasis added)
So, Brugger admits that to teach that capital punishment is always and intrinsically immoral does indeed amount to contradicting past teaching, not “developing” it. He just thinks that contradicting past teaching is in this case a good thing.
There are several aspects of this position that are curious, to say the very least. The first is that by characterizing the situation this way, even Brugger is implicitly accusing the pope of error. For Pope Francis says that his remarks do constitute a “harmonious development of doctrine,” that he is “not in any way contradicting past teaching,” and that his view of capital punishment “in no way represents a change in doctrine.” Now, the nature of a genuine “development of doctrine” is itself a doctrinal matter. Hence, if Brugger is correct, then the pope has committed a doctrinal error at least in his characterization of what constitutes a true development.
It is also worth noting that Brugger has in other contexts been very critical of Pope Francis for appearing to contradict traditional teaching. In particular, Brugger has argued that the pope’s statements on contraception and the Zika virus conflict with binding teaching on contraception, and that some of the statements in the pope’s exhortation Amoris Laetitia “pose serious problems for Catholic faith and practice” regarding conscience, grace, marriage and divorce, and Holy Communion.
Now, if, as Brugger suggests, we should accept what Pope Francis says about capital punishment as a “correction of a past view that was false,” then why do we not also have to accept what the pope has said about contraception, conscience, grace, marriage, Holy Communion, and development of doctrine as corrections of past views that were false? Or, if we should reject the latter papal statements on the grounds that they contradict traditional teaching, why should we not also reject the pope’s recent statements on capital punishment, on the grounds that they too reject traditional teaching?
Moreover, if the Fathers and Doctors of the Church, all previous popes, and even scripture itself in fact have (as Brugger’s view implies) been so wrong for so long about something as serious as capital punishment, why should Brugger or anyone else trust what these sources have to say about contraception, conscience, grace, marriage, and the like? How can the credibility of the Church be upheld on any doctrinal matter?
Brugger’s position is incoherent in yet another way. In the Register article, he is quoted as saying that Pope Francis’s remarks “are likely to reinforce the teaching of John Paul II.” Yet as already noted, Pope St. John Paul II explicitly affirmed that “the traditional teaching of the Church does not exclude recourse to the death penalty,” and also explicitly affirmed that the commandment against killing has “absolute value” only with respect to “the innocent person.” If Pope Francis really is saying that capital punishment is always and intrinsically wrong, then this does not “reinforce” John Paul’s teaching at all, but rather blatantly contradicts it!
(In fairness to Brugger, he has in other places tried to justify his rejection of traditional Catholic teaching on capital punishment, albeit via arguments that are as implausible as the remarks considered here. Joseph Bessette and I refute Brugger at length in By Man Shall His Blood Be Shed.)
The most vociferous defender of Pope Francis’s remarks has been the Catholic apologist and blogger Mark Shea. Unfortunately, as has become his wont in recent years, Shea completely ignores the actual arguments of his opponents and instead attacks straw men, indulges in ad hominem attacks, and drags in political controversies with which he is personally obsessed but which have nothing to do with the debate over capital punishment.
There is, however, one aspect of Shea’s position which is worthy of note. Ivereigh and Brugger agree that the pope’s remarks amount to a change in teaching, and merely disagree about whether they constitute a genuine ”development” of past teaching or instead contradict it. Shea, however, disputes this. He says:
I honestly don’t see how this is an issue of doctrinal reversal at all. In order to be a problem, the pope would need to say that the DP is intrinsically immoral. He doesn’t… There is no doctrinal reversal, merely an emphasis on mercy.
Note first that Shea admits that it would be a “problem” if the pope were teaching that capital punishment is intrinsically immoral. Indeed, though he is himself very strongly opposed to applying capital punishment in practice, Shea has in the past acknowledged that “the Church cannot reverse its teaching on the death penalty and say that what is not intrinsically immoral is intrinsically immoral.” If Shea wants to be consistent, he ought to rebuke not only the pope’s critics, but also fellow defenders of the pope like Brugger, for suggesting that there is a break with past teaching here.
However, as far as I know, of all those who have commented on this controversy (critics and defenders of Pope Francis alike) Shea is the only one who denies even the appearance of a reversal of doctrine. There is a good reason for that, namely that some of the things the pope says clearly do seem to suggest a reversal. For example, the pope says that capital punishment “is, in itself, contrary to the Gospel.” For something to be in itself contrary to the Gospel is for it to be intrinsically contrary to it, by its very nature contrary to it, contrary to it always and under all circumstances rather than merely in cases where it is not strictly necessary. I discuss in my Catholic Herald article other remarks from the pope’s speech that seem to imply a reversal of past teaching, and By Man Shall His Blood Be Shed discusses past statements by Pope Francis that seem to have a similar implication.
Now, maybe Shea would say that in such remarks, the pope is merely speaking loosely and rhetorically and does not intend to contradict the traditional teaching that capital punishment is not intrinsically wrong. Perhaps that is the case, and indeed I suggested in my Catholic Herald article that that may be all that is going on. But if so, then Shea can hardly object to the request that the pope clarify his remarks and reaffirm traditional teaching.
Furthermore, if the pope ends up deciding instead more explicitly to contradict past teaching and unambiguously to assert that capital punishment is always and intrinsically immoral, then Shea, to be consistent, will have to acknowledge that in that case the pope would be guilty of a doctrinal error. Is Shea willing now to pledge that he will indeed acknowledge this if the pope decides to go in that direction?
An Orwellian Magisterium?
It is remarkable how reluctant some commentators on this controversy are to acknowledge even the possibility that the pope might in his recent remarks have made a mistake that needs correction. For the Church, after all, acknowledges that popes are capable even of doctrinal errors when not speaking ex cathedra. For example, Donum Veritatis, a document issued by the Congregation for the Doctrine of the Faith under Pope St. John Paul II, states that:
The willingness to submit loyally to the teaching of the Magisterium on matters per se not irreformable must be the rule. It can happen, however, that a theologian may, according to the case, raise questions regarding the timeliness, the form, or even the contents of magisterial interventions…
If, despite a loyal effort on the theologian’s part, the difficulties persist, the theologian has the duty to make known to the Magisterial authorities the problems raised by the teaching in itself, in the arguments proposed to justify it, or even in the manner in which it is presented. He should do this in an evangelical spirit and with a profound desire to resolve the difficulties. His objections could then contribute to real progress and provide a stimulus to the Magisterium to propose the teaching of the Church in greater depth and with a clearer presentation of the arguments.
In commenting on this document at the time, the Prefect of the Congregation, Cardinal Ratzinger, also explicitly acknowledged that such criticism could be aired publicly, stating that “we have not excluded all kinds of publication” of said objections.1
There have in Church history been cases in which theologians loyal to the Magisterium have indeed raised such criticisms and requested, and received, clarification and correction of deficient magisterial statements. For example, when the medieval Pope John XXII taught doctrinal error regarding the Beatific Vision, he was strongly and publicly criticized by the theologians of the day, and even accused of heresy. The result was that he recanted this error.
In some comments on Prof. Echeverria’s article, theologian Robert Fastiggi recommends “religious submission of will and intellect” to Pope Francis’s recent remarks, despite their appearance of conflict with past teaching and despite the fact that the Church herself has acknowledged in Donum Veritatis that the duty of such “religious submission” is presumptive rather than absolute. (Nor, strictly speaking, are the pope’s critics actually refusing religious submission to the pope’s teaching in the first place. Rather, they are asking for clarification of that teaching in light of past teaching to which they also owe religious submission.)
Regarding the apparent conflict between Pope Francis’s remarks and scriptural affirmation of the legitimacy of capital punishment, Fastiggi comments:
The Old Testament passages that support capital punishment, however, must be studied carefully to determine whether they are permanent teachings or examples of the judicial law, which is subject to change (cf. St. Thomas Aquinas I-II qq. 99–100, 103–105)…
Even the much cited Gen 9:6 is a two-edged sword with regard to the death penalty. If taken literally it would mean that those who execute the guilty also need to be executed…
The meaning of particular Scripture texts is, of course, subject to interpretation…
Ultimately, though, it’s up to the Magisterium to interpret these texts of Scripture.
Fastiggi’s comments are seriously problematic in several ways. First, the “judicial laws” that Aquinas was commenting on had to do with the Mosaic Law. But there are scriptural affirmations of the legitimacy of capital punishment that both precede the Mosaic Law (Genesis 9:6) and that came after the Mosaic Law was no longer in force (for example, Romans 13: 4). So, even if the merely “judicial laws” issued through Moses are no longer in force, that does not suffice to show that there is not abiding scriptural warrant for capital punishment.
Second, whether the “judicial laws” are still in force is in any case irrelevant to the specific question at hand. For the pope has not merely said that capital punishment should no longer be applied in practice today. He has at least appeared to assert that capital punishment is always and intrinsically wrong. Now, if that is the case, then it would follow logically that the “judicial laws” of the Old Testament were commanding the Israelites to do something that was intrinsically wrong, wrong even at the time. But that cannot be reconciled with the Church’s teaching that scripture cannot teach moral error.
Third, Fastiggi’s attempt to muddy the waters vis-à-vis Genesis 9:6 is simply a non-starter. His bizarre suggestion does violence to the natural reading of the text, has no basis in the history of Catholic interpretation of the passage, and appears to have no motivation other than the desire to manufacture a difficulty so as to facilitate a reversal of teaching on capital punishment. (Even Brugger admits that Genesis 9:6 poses a problem for any Catholic who wants to claim that capital punishment is intrinsically immoral. See the discussion of the passage in By Man Shall His Blood Be Shed.)
Fourth, while Fastiggi is correct that it is up to the Magisterium to interpret scripture, the point is precisely that the Fathers and Doctors of the Church and all previous popes have uniformly interpreted scripture as affirming the legitimacy in principle of capital punishment. If Pope Francis were suddenly to declare that they had all gotten scripture wrong for 2000 years, this would entirely undermine rather than reinforce the Magisterium’s claim to be a reliable interpreter of scripture.
Moreover, if Fastiggi is suggesting that any papal reinterpretation of the relevant scriptural passages would have to be correct simply by virtue of being a papal interpretation, then he would be guilty of what logicians call a “No True Scotsman Fallacy,” which is the fallacy of arbitrarily reinterpreting counterevidence to one’s position so as to avoid refutation. The fallacy is illustrated by Angus’s reply to Kirsty in the following dialogue:
Angus: No Scotsman would drink bourbon!
Kirsty: But Alastair is a Scotsman, and he drinks bourbon.
Angus: Er, well, then he must not be a true Scotsman!
In the case at hand, Fastiggi seems to be committing himself to a view like the one conveyed in the following parallel dialogue:
Fastiggi: A pope could never misinterpret scripture!
Critic: But what if a pope were to contradict the way previous popes have always interpreted scripture vis-à-vis capital punishment?
Fastiggi: Er, well, then that would not be a true misinterpretation!
The problem with such a view is that it makes of magisterial interpretation of scripture something completely arbitrary, indeed even Orwellian. Just as the Party in 1984 arbitrarily revises history (“We are at war with Eastasia; we have always been at war with Eastasia”), so too, on what seems to be Fastiggi’s view, would the Magisterium be able arbitrarily to revise the meaning of scripture (“Scripture does not condone capital punishment; scripture has never really condoned capital punishment”). This would make a laughingstock of Catholic claims to be faithful to scripture. It would give aid and comfort to Protestant and atheist objections to the effect that the Catholic Church has no sincere regard for scripture and simply makes up doctrines out of whole cloth.
As logicians like to point out, anything follows from a contradiction. It is no surprise, then, that the pope’s defenders have ended up saying such radically different and inconsistent things. For there simply is no way to make an absolute condemnation of capital punishment consistent with past scriptural and papal teaching. The only way out of the mess is for the pope to issue a clarification that reaffirms traditional teaching.
That is what Catholic theologians loyal to the Magisterium should be imploring the Holy Father to do. Loyalty to the pope is not a matter of “spin doctoring” or damage control. It is a matter of humbly and respectfully assisting him in fulfilling the end for which the papal office exists – the preservation, whole and undefiled, of the deposit of faith.
1 Quoted in Anthony J. Figueiredo, The Magisterium-Theology Relationship (Rome: Editrice Pontificia Universita Gregoriana, 2001), at p. 370.