In our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, Joseph Bessette and I provide a mountain of evidence from Scripture, the Fathers and Doctors of the Church, and the teachings of the popes, that shows that it is the irreformable doctrine of the Church that capital punishment can be legitimate in some circumstances. Hence not even a pope has the authority to change this doctrine. In light of this evidence, I argued in a recent article at Catholic World Report (and in an earlier article at Catholic Herald) that Pope Francis’s recent comments on capital punishment – wherein he seemed to suggest that the practice is always and intrinsically immoral – need clarification.
Dr. Robert Fastiggi has taken issue with my arguments. What follows is a reply to his reply. I begin with a summary of what the Church teaches concerning the authority of the pope vis-à-vis doctrine.
Popes have limited authority and can make doctrinal errors when not speaking ex cathedra
Protestants sometimes accuse Catholics of believing that a pope has the authority to make up new doctrines or even to contradict Scripture. If a pope decided one day to add a fourth Person to the Trinity, or to declare abortion morally permissible, or to delete the Sixth Commandment, then – so the idea goes – Catholics would be duty bound to salute crisply, bark an enthusiastic “Yes, sir!”, and fall in line robotically with the new doctrine du jour. Call this the “Crude Protestant Caricature” of papal authority. (In fairness, it must be acknowledged that there are many Protestants who do not believe the Crude Protestant Caricature. Also, unfortunately, there are some overzealous and under-informed Catholics who do essentially believe the Crude Protestant Caricature.)
This is the reverse of the truth. In fact, while the First Vatican Council taught that a pope is infallible when he speaks ex cathedra, it also insisted that:
The Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles.
Along the same lines, the Second Vatican Council taught, in Dei Verbum, that the Church cannot teach contrary to Scripture:
[T]he living teaching office of the Church… is not above the word of God, but serves it, teaching only what has been handed on, listening to it devoutly, guarding it scrupulously and explaining it faithfully.
Nor may a pope try to work around these restrictions by coming up with novel reinterpretations of Scripture or of past binding doctrine. The First Vatican Council solemnly taught:
That meaning of the sacred dogmas is ever to be maintained which has once been declared by Holy Mother Church, and there must never be any abandonment of this sense under the pretext or in the name of a more profound understanding.
May understanding, knowledge and wisdom increase as ages and centuries roll along… but this only in its own proper kind, that is to say, in the same doctrine, the same sense, and the same understanding.
In a 2005 homily, Pope Benedict XVI reiterated these points, saying:
The Pope is not an absolute monarch whose thoughts and desires are law… He must not proclaim his own ideas, but rather constantly bind himself and the Church to obedience to God’s Word, in the face of every attempt to adapt it or water it down…
The Pope knows that in his important decisions, he is bound…to the binding interpretations that have developed throughout the Church’s pilgrimage.
In short, the Church puts the pope in a doctrinal box. Even when he is speaking ex cathedra, he must stay within the parameters he has inherited. He can draw out implications implicit in earlier doctrine, but he cannot make up new doctrines out of whole cloth. And what he teaches must be consistent with the entire body of past binding teaching. He is not permitted to contradict past doctrine and he cannot pit one doctrine against another.
Furthermore, he is not protected from all theological error when not speaking ex cathedra. This is not some novel opinion put forward by theological liberals or radical traditionalists. On the contrary, the Church has always recognized this, and it was commonly acknowledged in the very conservative approved manuals of theology in the pre-Vatican II period. For example, Van Noort’s Dogmatic Theology says of non-ex cathedra statements:
All theologians admit that the pope can make a mistake in matters of faith and morals when so speaking: either by proposing a false opinion in a matter not yet defined, or by innocently differing from some doctrine already defined. Theologians disagree, however, over the question of whether the pope can become a formal heretic by stubbornly clinging to an error in a matter already defined. The more probable and respectful opinion, followed by Suárez, Bellarmine and many others, holds that just as God has not till this day ever permitted such a thing to happen, so too he never will permit a pope to become a formal and public heretic. Still, some competent theologians do concede that the pope when not speaking ex cathedra could fall into formal heresy. (Vol II, p. 294)
Notice that the Church permits theologians to hold that a pope could even in principle fall into formal heresy when not speaking ex cathedra, and some approved theologians have in fact held this, even if they disagreed about how likely this is in practice.
There are in fact a handful of instances in Church history where popes may have taught doctrinal error. The most famous are probably the cases of Pope Honorius I and Pope John XXII. Honorius was guilty of failing unambiguously to reject the monothelite heresy, and may have been guilty of affirming the heresy himself (though historians disagree about that). He was harshly condemned by a council and by his successors Pope St. Leo II and Pope St. Agatho. John XXII denied the doctrine that the blessed in heaven immediately enjoy the beatific vision after death. Theologians of the day vigorously protested this error, with the result that the pope eventually recanted.
Naturally, if popes can in principle make doctrinal errors when not speaking ex cathedra, then they can make lesser errors too. Again, approved theologians have traditionally recognized this. To cite another old manual, John Ford and Gerald Kelly note in Contemporary Moral Theology that “papal pronouncement[s]… can be obscure and admit of reformulation,” and they give as examples a series of statements by Pope Pius XI and Pope Pius XII on the topic of punitive sterilization that were misleading and later revised. Ford and Kelly conclude:
The very fact that popes themselves have gone out of their way to clarify or restrict their moral pronouncements indicates that a theologian is not necessarily irreverent or disloyal in supposing that other such statements may need clarification or restriction or rephrasing. (Vol. I, pp. 29-30)
The case of capital punishment
Consider now the issue of the death penalty. Every pope who has commented on the matter up to Pope Benedict XVI has affirmed that the state has at least in principle the right to inflict capital punishment on offenders guilty of the most serious crimes. This includes even Pope St. John Paul II, who famously held that the cases where the death penalty should be used in practice are very rare at best. The doctrine has been affirmed in universal teaching documents, such as the Roman Catechism promulgated by Pope St. Pius V and the Catechism of the Catholic Church promulgated by John Paul II. Some popes, such as Pope Innocent I and Pope Innocent III, have made it clear that this teaching is a matter of Catholic orthodoxy, not a mere optional opinion.
Most importantly, the Church maintains that Scripture is divinely inspired and thus cannot teach moral error. She also teaches, in the words of the First Vatican Council, that “it is not permissible for anyone to interpret Holy Scripture in a sense contrary to” the meaning “which Holy mother Church held and holds” or which is “against the unanimous consent of the fathers.” Now, Scripture clearly teaches that capital punishment is sometimes morally permissible, and the Church historically, including the Fathers of the Church unanimously, have always interpreted Scripture as teaching this. Taken together, these points logically entail that the Church must regard the legitimacy in principle of capital punishment as a divinely inspired and thus infallible teaching. She cannot possibly reverse it consistent with her claim to preserve divine revelation intact.
As canon lawyer Edward N. Peters has noted in a recent reply to Fastiggi, the status of the legitimacy of capital punishment in the ordinary magisterium of the Church also points to the infallibility of the teaching. Joseph Bessette and I set out all of these considerations in detail and at length in our book.
Now, when you combine both what the Church has always taught about capital punishment and what she teaches about the scope and limits of papal authority, there is one logically inescapable conclusion: If a pope intended to claim that capital punishment is intrinsically immoral – and as I argued in my earlier articles, it is not certain that Pope Francis did intend this – then he would in that case be flirting with doctrinal error. Such a pope ought therefore to clarify his remarks and reaffirm traditional teaching.
Indeed, I would say that the error in this case would be at least as obvious as in the case of Pope John XXII, because the legitimacy in principle of capital punishment is hardly less clearly taught in Scripture than the immediacy after death of the beatific vision. Now, no one denies that the theologians of John XXII’s day were in the right, and that they were within their rights as Catholics to call upon the pope to reaffirm traditional teaching. Indeed, Pope John XXII himself ended up agreeing with them. Ergo, a Catholic who today respectfully asks Pope Francis to reaffirm traditional teaching is no less within his rights. It’s pretty straightforward.
The case of Professor Fastiggi
Now, Dr. Robert Fastiggi disagrees. Yet he gives no good arguments for thinking otherwise.
First, Prof. Fastiggi suggests that I have committed the fallacy of petitio principii or begging the question. He says that the teaching that capital punishment is legitimate in principle can be interpreted as a mere sententia communis rather than a definitive teaching. He says that the scriptural passages that seem to teach the legitimacy of capital punishment can be given alternative readings. He says that my characterization of Pope St. John Paul II’s opposition to capital punishment as a non-binding “prudential judgment” is open to challenge. And so forth. He implies that my remarks about Pope Francis merely assume, without argument, such background claims, so that I beg the question against those who have different opinions about them.
But I do not merely assume any of these things. On the contrary, in our book, Joseph Bessette and I provide well over 100 pages of detailed argumentation in support of these claims. We answer, in detail, the arguments claiming to show that the relevant scriptural passages can be reinterpreted, that the teaching on capital punishment is reversible, that John Paul II’s opposition to capital punishment is binding doctrine, etc. Fastiggi, by contrast, does not answer these arguments, but simply assumes that they are mistaken. Hence in fact it is Fastiggi, and not I, who is guilty of begging the question!
Second, Fastiggi repeatedly characterizes the issue as if it were a matter of whether one ought to agree with Pope Francis or with me, Edward Feser. But that is an absurdly tendentious way of framing the issue. To be blunt, but also fair, it is cheap rhetoric rather than serious theological argumentation. The question is not whether Pope Francis’s statements are consistent with my position. The question is whether Pope Francis’s statements are consistent with Scripture, previous popes, and the Fathers and Doctors of the Church. After all, the Church, following the Fathers, has always interpreted Scripture as teaching the legitimacy of capital punishment. Previous popes have taught that affirming the legitimacy of capital punishment is a matter of Catholic orthodoxy. These are not novel views that I came up with!
If Fastiggi were consistent on this point, he’d have to say that the theologians who objected to Pope John XXII’s remarks about the beatific vision were pitting their personal views against the pope’s. But not only is that not what they were doing, Pope John himself ultimately agreed that that is not what they were doing. Rather, they were simply calling attention to what the Church herself had always taught. And that is all I am doing.
Third, Fastiggi is inconsistent in another way. He frets over the implications of disagreeing with Pope Francis’s remarks about capital punishment. Yet he does not seem to have any qualms about the prospect of disagreeing with Pope Innocent I, Pope Innocent III, Pope Pius V, Pope Pius X, Pope Pius XII, Pope John Paul II, and all the other popes who taught that capital punishment is legitimate in principle. You can’t have it both ways.
Fourth, Fastiggi complains:
Feser… claims that submission to non-definitive teachings of the Magisterium is “presumptive rather than absolute.” The Congregation for the Doctrine of the faith, however, teaches that “the willingness to submit loyally to the teaching of the Magisterium on matters per se not irreformable must be the rule [regula]” (CDF, Donum Veritatis, n. 24).
What Fastiggi does not quote, however, is the very next sentence from Donum Veritatis, which says that “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.” And in the next paragraph, the document says that “it could happen that some Magisterial documents might not be free from all deficiencies.”
In other words, while submission to non-irreformable teachings “must be the rule,” there are nevertheless cases where a loyal theologian “may… raise questions” about teachings which exhibit “deficiencies” of various sorts. Now, that is exactly what I meant when I said submission to non-irreformable teachings was “presumptive rather than absolute.” Hence, while Fastiggi insinuates that I was somehow misrepresenting Donum Veritatis, in fact I was accurately presenting the whole teaching of Donum Veritatis – as opposed to quoting from it selectively, as Fastiggi does.
Fifth, Fastiggi complains that “Prof. Feser doesn’t seem to realize… that his claim that Pope Francis is ‘flirting with doctrinal error’… can serve to undermine people’s confidence in the papal Magisterium.” This is like saying that the theologians of Pope John XXII’s day were undermining people’s confidence in the papal Magisterium, or that the council and later popes who criticized Pope Honorius were undermining people’s confidence in the papal Magisterium.
In fact, the opposite is the case. You cannot reinforce people’s confidence in the papal Magisterium unless you first make it clear exactly what are the scope and limits of that Magisterium. When well-meaning theologians like Prof. Fastiggi tie themselves in logical knots in order to avoid having to admit that a pope might have misspoken or made a mistake when not speaking ex cathedra – despite the fact that the Church herself has always acknowledged that this can happen! – they reinforce the slander that Catholics are committed to what I have called the Crude Protestant Caricature of papal authority.
In particular, they give (however unintentionally) the false impression that popes can reinvent doctrine at will and simply stipulate, by dictatorial fiat, that the novelties they are teaching are “scriptural” and “traditional.” They thereby make a laughingstock of Catholic claims to have preserved the deposit of faith whole and undefiled. And they thereby undermine confidence in the papal Magisterium. Non-Catholics are liable to conclude that Catholic claims about the papacy are a kind of Orwellian sophistry. Some Catholics are liable to conclude this too, and to lose their faith as a result – whereas if they were reassured instead that the Church does not require them to deny the obvious, their faith will be saved.
Here is the bottom line: In order to defend the suggestion that a pope could teach that capital punishment is always and intrinsically immoral, you have to maintain that the Church has for 2000 years been teaching grave moral error. Indeed, you have to say that the Church has for all that time been defending, as a matter of moral doctrine, a species of murder. You also have to say either that Scripture teaches moral error and that the Church has for 2000 years been wrong to claim otherwise; or you have to say that Scripture does not teach moral error but that the Fathers and Doctors of the Church, all previous popes, and indeed the Church in general for 2000 years, have misunderstood Scripture.
How on earth Prof. Fastiggi could seriously think that defending those propositions is remotely conducive to upholding people’s confidence in the papal Magisterium, I have no idea.