My friend and colleague Dr. Robert Fastiggi recently replied to Dr. Edward Feser regarding Feser’s defense of capital punishment in capital cases. Feser holds that the moral liceity of the justly administered death penalty has been established with infallible certitude by the Magisterium of the Church and that a pope is not free to contradict that conclusion. I agree with Feser on his infallibility claim but my focus is now elsewhere.
While Fastiggi disagrees with Feser on the infallibility claim, he seems open to the possibility that Church teaching on the liceity of the death penalty bears the theological note of “sententia communis” which grants that the traditional view of the death penalty represents “common thinking” though it ultimately remains a matter of opinion. Because Fastiggi, in a long essay that proves many points that Feser would not dispute, thinks that “the odds are stacked against Feser” in determining what constitutes Church teaching, one should “stick with the pope” unless and until, one supposes, a later pope comes along to change the teaching again.
Of course Fastiggi, if ever faced with a pope he knew to be preparing to deny publicly an infallible Church teaching, would react to such a looming catastrophe as would Feser and I, by falling to his knees and imploring divine assistance against such a move. But, as Fastiggi does not think that Pope Francis is preparing to contradict something infallibly asserted, a reaction more along the lines of sober academic curiosity suffices regarding Francis’ recent assertions that the death penalty itself is “contrary to the Gospel” and so on.
Hmmm. Let’s think about this.
Ludwig Ott’s Fundamentals of Catholic Dogma (Tan 1974) presents hundreds of doctrinal and theological assertions according to their “grade of certainty”, including dozens that Ott regards as “sententia communis”. The list includes:
• Christ’s sanctifying grace flows to his Mystical Body, 171;
• Christ’s atonement exceeds the debt of all human sins, 188;
• The Holy Spirit is the soul of the Church, 294;
• The saints in heaven can help the souls in purgatory by intercession, 322; and,
• Dead people cannot receive sacraments, 344.
Now, taking just the last two examples of “sententia communis” claims, suppose a pope were to “announce” (to use a neutral term) that the intercession of the saints in heaven is useless to the souls in purgatory and that dead people can henceforth receive at least some sacraments. Suppose he threw in an expression of regret that even the Holy See, out of a mentality ‘more dogmatic than Christian’ had itself supported these views until recently.
Would it suffice to respond to such an announcement ‘Well, these views never were asserted infallibly’ so, yes, let’s rewrite the Catechism in regard to CCC 1259 (so that dead catechumens can be baptized anyway) or in regard to CCC 956 and 2683 (so as to make clear that Saints cannot pray for the Church suffering but only for the Church militant)?
I think not. I think Feser would think not. And I think Fastiggi would think not. But if not, why not?
Having asked the question, let me briefly propose an answer, one I suggest is latent in Fastiggi’s admirable deference to the magisterium (papal and otherwise), but one requiring more appreciation of the indicators that such magisterium has already been engaged.
Pope St. John Paul II in his landmark motu proprio Ad tuendam fidem (1998) filled a serious lacuna in canon law when he gave legal expression to the binding character of infallible assertions concerning (what specialists call) “secondary objects of infallibility”. See 1983 CIC 750 as revised, and the penal teeth given the new norm by Canon 1371 as revised. That papal document along with Cdl. Ratzinger’s “Doctrinal Commentary” on the new norms provide us, I think, new and valuable insights into the scope and qualities of infallible assertions that might have been long held in the Church but for which, until recently, we had only limited tools for recognizing as such, thus, prudently contenting ourselves with assigning them lesser theological claims of surety such as “sententia communis”, “theologice certa”, and so on.
It is, thus, my suggestion that many of the assertions hitherto listed by theologians with a surfeit of restraint as merely, say, “sententia communis” might, upon closer investigation in light of the criteria set out in Ad tuendam and its progeny, be found to enjoy infallible certitude, after all, as either primary or, as I think the liceity of the capital punishment qualifies, as secondary objects of infallibility.
In other words, cautious thinkers such as Fastiggi might, by applying Ad tuendam to a position they could already see as “sententia communis”, come to see in the Church’s long defense of the liceity of capital punishment the marks of infallible certitude as well.
And that conclusion, in turn, changes everything.
(This post originally appeared on the “In the Light of the Law” blog and is reposted here by kind permission of Dr. Peters.)
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