Capital punishment and the infallibility of the ordinary Magisterium

A demonstration that it has been infallibly taught by the ordinary magisterium of the Church that the death penalty is not intrinsically wrong. Not even a pope can reverse this teaching.

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When discussing Church teaching on the death penalty, two questions have to be carefully distinguished. First, is capital punishment legitimate at least in principle, or is it always and intrinsically wrong? Second, even if capital punishment is legitimate in principle, does Catholic teaching allow for it in practice today, and if so, under what conditions? In this article, I will be addressing only the first question. What I will show is that it has been infallibly taught by the ordinary magisterium of the Church that the death penalty is not intrinsically wrong. Not even a pope can reverse this teaching.

This is a proposition that Joseph Bessette and I defend at length in our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment. Among our key arguments is the argument from scripture. The Church holds that scripture is divinely inspired and therefore cannot teach error on matters of faith and morals. She also holds that the Fathers of the Church cannot be wrong when they agree about some matter of scriptural interpretation. But as we show in the book, scripture clearly teaches that capital punishment can be legitimate in principle, and the Fathers are agreed that scripture teaches this. It follows that the legitimacy in principle of capital punishment is a divinely inspired and thus irreformable teaching.

Some critics of our book resist this conclusion. Catholic theologian E. Christian Brugger has long argued that the Church could condemn the death penalty as wrong always and in principle, and defends this position in a response to our book. Catholic theologian Robert Fastiggi also claims that “there is no definitive, infallible teaching of the Church in favor of the legitimacy of capital punishment” and that a condemnation of the practice as “intrinsically evil… is theoretically possible.” Eastern Orthodox theologian David Bentley Hart argues that, whether or not the death penalty is in principle permitted by natural law, the higher demands of the Gospel nevertheless rule it out absolutely.

The focus of these critics has been on attempts to reinterpret various passages from scripture or statements from the Fathers, and to minimize the significance of individual papal and other magisterial statements of the past. In earlier articles responding to Brugger, Fastiggi, and Hart, I have shown that these attempts fail. But there is also a forest the critics miss when they fixate on these individual trees. That forest is the ordinary magisterium of the Church – the everyday teaching of popes, bishops, and ecclesiastically approved theologians as they convey the Faith in encyclicals, sermons, books, and the like. Yes, unambiguous scriptural passages and ex cathedra papal declarations are among the places to look for irreformable Church teaching. But they are by no means the only places. The Church holds that the ordinary magisterium can also teach infallibly under certain circumstances.

What I will show in what follows is that the ordinary magisterium of the Church clearly teaches not only that the death penalty is legitimate in principle under natural law, but also that even the Gospel does not rule it out absolutely. And again, I will show that the ordinary magisterium has taught these things infallibly. (Of course, a non-Catholic theologian like Hart will not be moved by an appeal to the ordinary magisterium of the Catholic Church. But Catholic theologians like Brugger and Fastiggi cannot dismiss such an appeal.)

When does the ordinary magisterium teach infallibly?

The 1990 document Donum Veritatis, issued by the Congregation for the Doctrine of the Faith (CDF) under Cardinal Joseph Ratzinger, allows that there are cases when the ordinary magisterium does not teach infallibly. However, in section 24 it also points out:

But it would be contrary to the truth, if, proceeding from some particular cases, one were to conclude that the Church’s Magisterium can be habitually mistaken in its prudential judgments, or that it does not enjoy divine assistance in the integral exercise of its mission. (Emphasis added)

A “prudential judgment” involves the application of a general principle of faith or morals to a concrete situation. What the document is saying is that though the magisterium can err in an individual prudential judgment, the “divine assistance” that it enjoys precludes its being “habitually mistaken” in its prudential judgments.

Now, if the divine assistance enjoyed by the Church precludes habitual error even in prudential applications of general principles of faith and morals, then a fortiori it precludes any habitual error in the teaching of general principles of faith and morals themselves. Hence the clear implication of Donum Veritatis is that if the Church has been teaching something for two thousand years, then that teaching cannot be mistaken. For such an error would be of the “habitual” kind ruled out by the divine assistance enjoyed by the Church.

In 1998, the CDF under Cardinal Ratzinger issued a doctrinal commentary on the profession of faith required of those assuming an office in the Church. Sections 5 and 6 of the commentary make it clear that there are “teachings belonging to the dogmatic or moral area” which, even though they have “not been proposed by the Magisterium of the Church as formally revealed,” nevertheless “can be taught infallibly by the ordinary and universal Magisterium of the Church.” The commentary draws the conclusion that:

Every believer, therefore, is required to give firm and definitive assent to these truths, based on faith in the Holy Spirit’s assistance to the Church’s Magisterium, and on the Catholic doctrine of the infallibility of the Magisterium in these matters. Whoever denies these truths would be in a position of rejecting a truth of Catholic doctrine and would therefore no longer be in full communion with the Catholic Church. (Emphasis in original)

Note that the commentary is not speaking here of doctrines which have been explicitly and solemnly defined as divinely revealed, such as the doctrine of the Trinity. Obviously, firm and definitive assent is due doctrines of that sort, but what the commentary is saying is that such assent is also due many teachings which have not been defined in this way. In section 9, the commentary adds:

[W]hen there has not been a judgment on a doctrine in the solemn form of a definition, but this doctrine, belonging to the inheritance of the depositum fidei, is taught by the ordinary and universal Magisterium, which necessarily includes the Pope, such a doctrine is to be understood as having been set forth infallibly.

In footnote 17 the commentary adds the further remark:

[T]he infallible teaching of the ordinary and universal Magisterium is not only set forth with an explicit declaration of a doctrine to be believed or held definitively, but is also expressed by a doctrine implicitly contained in a practice of the Church’s faith, derived from revelation or, in any case, necessary for eternal salvation, and attested to by the uninterrupted Tradition… [T]he intention of the ordinary and universal Magisterium to set forth a doctrine as definitive is not generally linked to technical formulations of particular solemnity; it is enough that this be clear from the tenor of the words used and from their context. (Emphasis added)

In section 11, the commentary gives several examples of teachings of the sort to which it is referring. One particularly noteworthy example is “the declaration of Pope Leo XIII… on the invalidity of Anglican ordinations.” Another is “the doctrine on the illicitness of euthanasia,” which the commentary says is binding even though “Scripture does not seem to be aware of the concept.”

The reason these examples are noteworthy is that they concern teachings that are relatively recent and not directly grounded in scripture. If even these teachings must be given “firm and definitive assent” by the faithful on pain of breaking “full communion with the Catholic Church,” then it follows a fortiori that a teaching which is directly grounded in scripture and has been consistently taught for two millennia would also require such assent.

Older magisterial statements point in the same direction. For example, section 12 of the Vatican II document Lumen Gentium teaches:

The entire body of the faithful, anointed as they are by the Holy One, cannot err in matters of belief. They manifest this special property by means of the whole peoples’ supernatural discernment in matters of faith when “from the Bishops down to the last of the lay faithful” they show universal agreement in matters of faith and morals.

Now, in other contexts in which the Church attributes theological significance to unanimity (as when the First Vatican Council teaches that scripture cannot be interpreted contrary to the “unanimous consent of the Fathers”), theologians commonly understand this to entail only a “moral unanimity” rather than that literally every single member of a group affirm a certain opinion. If that is true even of the Fathers, it is obviously going to be true of the vastly larger group that is the Church as a whole. Lumen Gentium is not speaking of a case where literally every single Catholic affirms something, for there very well may be no such case given that there are always some Catholics who have heretical opinions, etc. What it is saying is that if some belief about faith or morals is virtually universal in the Church – held more or less by every Catholic whether priest or layman, educated or uneducated, etc. – then this belief cannot be mistaken, given the divine guidance enjoyed by the Church.

It also cannot be that Lumen Gentium is ruling out the possibility that there will be periods where the Church largely falls into error in a temporary way. This happened during the Arian crisis, and the Church has always taught that there will be a great apostasy from the Faith in the last days. The point is evidently rather that, like the ordinary magisterium, the faithful as a whole cannot fall into error “habitually,” to use the language of Donum Veritatis.

The teaching of Lumen Gentium therefore implies that if some belief concerning faith or morals is virtually universal in the Church for millennia, then that belief cannot be in error. For persistence in theological or moral error for such a prolonged period of time would be the habitual kind which Lumen Gentium says the faithful as a body are preserved from.

What is true of the faithful as a whole is also true of theologians as a whole. In Tuas Libenter, Pope Pius IX wrote:

[T]hat subjection which is to be manifested by an act of divine faith… would not have to be limited to those matters which have been defined by express decrees of the ecumenical Councils, or of the Roman Pontiffs and of this See, but would have to be extended also to those matters which are handed down as divinely revealed by the ordinary teaching power of the whole Church spread throughout the world,and therefore, by universal and common consent are held by Catholic theologians to belong to faith

[I]t is not sufficient for learned Catholics to accept and revere the aforesaid dogmas of the Church, but… it is also necessary to subject themselves… to those forms of doctrine which are held by the common and constant consent of Catholics as theological truths and conclusions, so certain that opinions opposed to these same forms of doctrine, although they cannot be called heretical, nevertheless deserve some theological censure. (Denzinger sections 1683-1684, emphasis added)

Of course, theologians are not infallible as individuals, and as with the faithful as a whole, it is possible for theologians even as a body to fall into error temporarily, as they would if they were to teach contrary to the ordinary and universal magisterium of the Church. But Tuas Libenter holds that when there is “common and constant” agreement among theologians about some matter of faith and morals that is in harmony with the ordinary magisterium of the Church, then Catholics are obliged to assent to their teaching. The idea would be that when not only the ordinary magisterium of the Church, but even those Catholics most highly educated in matters of faith and morals, all agree for a very long period of time that something is part of the Faith, then they cannot be mistaken. The divine assistance enjoyed by the Church would not allow the Church for millennia to fall into a moral or theological error that is so deep that not only the Church’s ordinary magisterium, but even the learned theologians who are called to assist the magisterium, would collectively fail to see it.

Now, there can be no doubt that the ordinary magisterium of the Church has consistently taught not only that capital punishment is legitimate at least in principle, but also that it is legitimate at least in principle for Christians, specifically, to resort to it. In other words, the magisterium has taught that the death penalty is not intrinsically contrary to either natural law or the Gospel. And there can be no doubt that the ordinary magisterium has taught these things in a way that meets the criteria for infallibility just set out.

Capital punishment in the ordinary papal magisterium

First of all, there can be no doubt that the ordinary papal magisterium has taught these things in a way that meets the criteria for infallibility. Let’s briefly review some of the evidence (which Joe Bessette and I set out in much more detail in our book).

In 405, an inquiry was made to Pope St. Innocent I about whether civil authorities could, after converting to Christianity, continue to inflict the death penalty. His response was that they could do so, and he alluded to Romans 13 as evidence that this judgment has divine authority behind it. He thereby rejected the suggestion that the higher demands of the Gospel required Christians to endorse an absolute prohibition on capital punishment.

In 1210, Pope Innocent III required of the Waldensian heretics, as one of the conditions of their reconciliation with the Church, that they affirm that the death penalty can “without mortal sin” be inflicted. Now, the Waldensians had claimed that the Gospel requires Christians to refrain from violence and from punishing evildoers. It was their interpretation of the higher demands of Christian morality, specifically (as opposed to natural law), that motivated their opposition to capital punishment. Pope Innocent, then, was essentially rejecting as heterodox this interpretation of the demands of the Gospel.

In 1566, at the order of the Council of Trent, Pope St. Pius V promulgated the Roman Catechism. This was an official manual of Catholic teaching intended to offer sound moral and doctrinal guidance to the universal Church for generations. The catechism not only affirms that the state can legitimately execute criminals, but teaches that “the just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder” (emphasis added). The reason is that by “punish[ing] the guilty” in this way, the state thereby “protect[s] the innocent” (emphasis added). In other words, the catechism considers and explicitly rejects the claim that respect for scriptural teaching on the sanctity of life should lead us to reject the death penalty. It does so on the grounds that the lives of the innocent take precedence over those of the guilty. And it teaches this, not only by way of expounding some abstract point of natural law, but for the purpose of instructing the Christian faithful about what is morally required of them.

In 1912, the Catechism of Christian Doctrine was issued by Pope St. Pius X. In its discussion of the scriptural commandment against murder, this catechism teaches that “it is lawful to kill… when carrying out by order of the Supreme Authority a sentence of death in punishment of a crime.” Note that the catechism thereby rejects the suggestion that capital punishment is incompatible with a consistent application of the Fifth Commandment. And, as a catechism, it presents this teaching as practical guidance to the Christian faithful, and not merely as speculation about what might be theoretically possible under natural law.

Pope Pius XII, in a series of addresses in the 1940s and 1950s, had more to say about the subject of crime and punishment than perhaps any other pope in history. Joe Bessette and I quote from and analyze his various statements at length in our book (at pp. 128-34). I would urge readers unfamiliar with this material to study it carefully, because it is both radically out of step with what many contemporary Catholics think about punishment, and also expressed and argued for in a much more detailed and systematic way than more recent papal statements on the subject.

In a 1953 address, Pius taught that “the most important function” of punishment in general is the securing of retributive justice. He considers and explicitly rejects the thesis that in modern times, punishment should be understood instead primarily as a “protective measure” oriented to the “defense of the community.” The traditional retributive conception of punishment, the pope taught, is the “more profound” one, and in its defense he cites Romans 13 and also the fact that at the last judgment, the protective function of punishment will disappear but the retributive function will remain. Pius also taught that punishments “should correspond to the gravity of the crimes.” For example, “in the case where human life is made the object of a criminal gamble,” to inflict on the evildoer “a mere privation of civil rights” would, the pope taught, “be an insult to justice.”

In a 1954 address, Pius XII once again defended the thesis that punishment is primarily a matter of retributive justice, and he emphasized that its point is to inflict a harm on the offender himself because he deserves it, rather than being merely a response to the offender’s actions. He considers and explicitly rejects the idea that the focus on retribution is no longer applicable in modern society, arguing that the retributive conception “is more in agreement with what the sources of revelation and traditional doctrine teach” and that “it is not a sufficient reply to this assertion to say that [these] sources contain only thoughts which correspond to the historic circumstances and to the culture of the time.” Pius also once again emphasized that “the law of retaliation would inflict a proportionate evil on the culprit” (emphasis added).

On several occasions, Pius XII taught that capital punishment, specifically, can be an appropriate punishment for the gravest offenses. For example, in a 1954 address, he taught that “it is reserved… to the public authority to deprive the criminal of the benefit of life when already, by his crime, he has deprived himself of the right to live.” This teaching was presented as having contemporary application, and not merely as abstract speculation about what might be theoretically possible under natural law.

The Catechism of the Catholic Church promulgated by Pope St. John Paul II, like the Roman Catechism, is intended to provide the universal Church with a sound moral and doctrinal guide. It reaffirms Pius’s teaching that punishment ought to be “proportionate to the gravity of the offense,” and that the “primary aim” of punishment in general is “redressing the disorder introduced by the offense,” i.e. it is essentially and always retributive, even when other ends (such as the protection of society) are also in view. The catechism also explicitly reaffirms the traditional teaching that capital punishment can be legitimate, even if it states that this penalty should only be applied when absolutely necessary.

Like the Roman Catechism and the catechism issued by Pius X, the catechism issued by John Paul II is meant to give guidance for the Christian faithful and not merely to speculate about what natural law makes possible theoretically. And it explicitly allows that the death penalty can in some cases be inflicted. Of course, it is true that the catechism also says that the cases in which capital punishment is called for are “very rare, if not practically nonexistent.” The point for present purposes, though, is that the catechism not only does not teach that capital punishment is intrinsically contrary to the Gospel, but explicitly teaches the opposite insofar as it allows that Christians can resort to the death penalty under certain circumstances.

It is important to note as well that the catechism here simply reiterates the teaching of an encyclical, Pope John Paul II’s Evangelium Vitae. Commentators routinely emphasize that the pope was opposed to capital punishment in practice, but they too often ignore the fact that even John Paul II did not reverse, but indeed reaffirmed, the traditional teaching that the Gospel does not rule out capital punishment in an absolute way. And he did so in documents having a high degree of authority.

For over fifteen centuries, then, the popes have consistently taught not only that capital punishment is not intrinsically wrong, but also that it is not intrinsically wrong for Christians, specifically, to resort to it. It is true that none of the individual statements just cited is an ex cathedra statement, but that is beside the point. For again, the Church teaches that the ordinary magisterium cannot be “habitually” mistaken in matters of faith and morals, and it would have been habitually mistaken if capital punishment is either intrinsically contrary to natural law or intrinsically contrary to the Gospel.

Furthermore, the Church teaches that Catholics must give “firm and definitive assent” even to teachings like the immorality of euthanasia and the invalidity of Anglican ordinations, even though these teachings have not been solemnly defined, are not directly attested to in scripture, and have been explicitly taught by the magisterium only relatively recently. How much more, then, must the faithful give such assent to the legitimacy in principle of the death penalty, which is directly attested to in scripture, and which is also attested to in over fifteen centuries of consistent papal teaching?

The gravity of the error into which the popes would have been leading the faithful, if capital punishment were intrinsically evil, is difficult to overstate. If capital punishment is always and intrinsically wrong, then it is a species of murder, which is nothing less than one of the “four sins that cry to heaven for vengeance.” If capital punishment is always and intrinsically wrong, then the Church has also been badly misinterpreting the sizable number of scriptural passages spread across the Old and New Testaments that seem to permit capital punishment. In other words, she has for two millennia been badly misunderstanding both natural law and divine revelation. These would be habitual grave errors concerning fundamental principles of faith and morals, and not mere prudential application of such principles.

Another point bears emphasis. Those who would like the Church to reverse her traditional teaching on capital punishment have deployed a number of lines of argument. For example, some have argued that a consistent respect for the Fifth Commandment should lead us to condemn capital punishment no less than abortion, euthanasia, and other forms of murder. Some have argued that the higher demands of the Gospel rule out Christian participation in capital punishment. Some have argued that in modern times punishment should be concerned only with protection against potential future crimes, and not with retribution for past crimes. Some have argued that the lives of the innocent and the guilty are equally inviolable.

It is striking that every one of these lines of argument has, as we have seen, already been explicitly considered by the papal magisterium over the centuries and explicitly rejected by that magisterium. So, if capital punishment really is after all intrinsically contrary to either natural law or the Gospel, then things are even worse that what has been said so far indicates. For in that case, it is not that the popes didn’t have the evidence or argumentation that would have led them out of grave error. It’s that they did have the relevant evidence and argumentation, and still got it wrong for nearly two millennia.

Error this massive and this persistent is simply not possible if the ordinary magisterium of the Church has the divine assistance that the Church claims for it. Thus do we have the following argument for the infallibility of the Church’s traditional teaching that capital punishment is intrinsically contrary neither to natural law nor to the higher demands of Christian morality:

1. If capital punishment were intrinsically contrary either to natural law or to the higher demands of Christian morality, then the ordinary magisterium of the Church has for nearly two millennia been massively and habitually in error.

2. But the ordinary magisterium of the Church cannot be massively and habitually in error.

3. Therefore, capital punishment is not intrinsically contrary either to natural law or to the higher demands of Christian morality.

To this we can add a further argument from the ordinary papal magisterium. The First Vatican Council taught that, even when exercising his extraordinary magisterial authority in the making of an ex cathedra proclamation, the pope cannot introduce novel teachings:

For 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. (Emphasis added)

Now, what is true of the pope when he exercises the fullness of his teaching authority can hardly be less true of the pope when he exercises the merely ordinary papal magisterium. In other words, if he cannot teach some novel doctrine even when he speaks ex cathedra, then he cannot do so when making a doctrinal statement of some lesser degree of authority. But if a pope were to teach that capital punishment is intrinsically evil, then he would be teaching some novel doctrine, since this would contradict what scripture, the Fathers of the Church, and all his predecessors have taught. Therefore, no pope has authority to teach such a thing.

This further argument can be summarized as follows:

1. A pope has no authority to introduce a new doctrine even when he speaks ex cathedra.

2. If he cannot do something even when speaking ex cathedra, then a fortiori he cannot do it in a magisterial statement of lesser authority.

3. But every other magisterial statement is of lesser authority.

4. So the pope has no authority to introduce a new doctrine in any magisterial statement.

5. But to condemn capital punishment as intrinsically evil would be to introduce a new doctrine.

6. So a pope has no authority to condemn capital punishment as intrinsically evil.

Capital punishment in the Doctors of the Church and other theologians

These arguments, I maintain, decisively refute the claim that the Church could teach that capital punishment is intrinsically wrong or intrinsically contrary to the Gospel. But let’s bounce the rubble a little further.

The teaching of a saint who is classified as a Doctor of the Church has a special authority. The Doctors have that title because they are held by the Church to possess so penetrating an understanding of the Faith that Catholics can regard them as safe guides in matters of doctrine and morals. To count as a Doctor, a writer has to meet three criteria: a high degree of personal sanctity; eminence in learning; and official recognition by the Church (such as a formal conferral of the title “Doctor” by a pope or council).

Given this formal recognition by the Church, the teaching of the Doctors is clearly an extension of the ordinary magisterium. And while the Doctors are not individually infallible, it would be quite absurd to believe that they could all be wrong on some matter about which they are in agreement. Again, they are all noted, first, for their high degree of sanctity. So how could all of them be wrong about some matter of Christian morality? They are noted, second, for their eminence in learning, and in particular for their deep understanding of scripture and Christian doctrine. So how could all of them fall into error on some point of doctrine or scriptural interpretation? Third, they are formally recognized by the Church as safe guides to faith and morals. So how could they collectively lead the faithful into grave moral or theological error?

Consistency with the consensus of the Doctors has, accordingly, been regarded by the Church as a mark of orthodoxy in doctrine. For example, in 1312 the Council of Vienne defended a point of doctrine by appealing to “the common opinion of apostolic reflection of the Holy Fathers and the Doctors” (Denzinger section 480).

Now, as Joe Bessette and I show in our book, the Doctors of the Church who happen also to be Fathers of the Church and who comment on the subject of capital punishment all agree that the practice is legitimate at least in principle (even if some of them urge against its use in practice). In particular, this is true of St. Ephraem, St. Hilary, St. Gregory of Nazianzus, St. Ambrose, St. Jerome, St. John Chrysostom, and St. Augustine. As I noted in the reply to Hart linked to above, Ambrose and Augustine link this judgment to their understanding of Romans 13.

The Doctors who wrote on this subject after the patristic period not only consistently reaffirm the legitimacy in principle of capital punishment, but also consistently affirm that it is legitimate in principle even for Christian rulers, specifically, to resort to the practice. One finds this view taken by St. Bernard of Clairvaux, St. Thomas Aquinas, St. Peter Canisius, St. Robert Bellarmine, and St. Alphonsus Liguori. They also consistently ground this judgment in scripture.

Hence, St. Bernard writes:

The knights of Christ may safely fight the battles of their Lord, fearing neither sin if they smite the enemy, nor danger at their own death… The Lord freely accepts the death of the foe who has offended him, and yet more freely gives himself for the consolation of his fallen knight.

The knight of Christ, I say, may strike with confidence and die yet more confidently, for he serves Christ when he strikes, and serves himself when he falls. Neither does he bear the sword in vain, for he is God’s minister, for the punishment of evildoers and for the praise of the good. If he kills an evildoer, he is not a mankiller, but, if I may so put it, a killer of evil. He is evidently the avenger of Christ towards evildoers and he is rightly considered a defender of Christians. (Emphasis added)

Now, St. Bernard is addressing warfare rather than capital punishment as usually understood, but notice that he is defending the infliction of death in warfare precisely as a punishment, and doing so on the basis of Romans 13 (to which he is clearly alluding in the words italicized in the second paragraph). He is saying that a certain kind of warfare is justifiable in part because it amounts to a kind of capital punishment. And he is saying not only that such punishment is legitimate in principle under natural law, but that the Christian – the “knight of Christ” – can legitimately inflict it.

Aquinas is known as the Universal or Common Doctor of the Church, and his preeminent status has been affirmed and reaffirmed in a long series of papal statements. For example, Pope John XXII said that Aquinas “enlightened the church more than all the other doctors.” Pope St. Pius V characterized his work as “the most certain rule of Christian doctrine.” Pope St. Pius X taught that “one may not desert Aquinas, especially in philosophy and theology, without great harm.” Pope Benedict XV wrote that Aquinas’s doctrine “should be followed in a special way at all times.” Pope Pius XI taught that “as innumerable documents of every kind attest, the Church has adopted his doctrine for her own.” And so on and on.

In our book, Joe Bessette and I quote several passages in which Aquinas teaches that rulers, including Christian rulers, can legitimately inflict a penalty of death for sufficiently grave crimes. In a couple of places, he explicitly cites Romans 13 in defense of this judgment (Summa Contra Gentiles III.146.6; Lectures on the Letter to the Romans, chap. 12, lect. 3).

A catechism is meant to give Catholics a reliable guide to faith and morals, and St. Peter Canisius is known as the Doctor of the Catechism or Doctor of Catechetical Studies. In his own catechism, Canisius defends the legitimacy of capital punishment by appealing to scripture, including Genesis 9:6 (“Whoever sheds the blood of man, by man shall his blood be shed”).

Among all the Doctors of the post-medieval era, St. Robert Bellarmine was perhaps the one to have written most systematically and at length about how Christian principles apply within a modern political order. The key work here is his De Laicis, or the Treatise on Civil Government, in which he devotes an entire chapter (chapter 13) to defending the thesis that “it is lawful for a Christian magistrate to punish with death disturbers of the public peace.” Bellarmine argues in part from scripture – citing, among other texts, Genesis 9:6 and Romans 13 – in part from the authority of the Church Fathers, and in part from natural law. He considers and explicitly rejects the hypothesis that the Genesis passage was meant merely as a proverb rather than a precept. He also considers, and argues at length against, the claim that capital punishment is ruled out by the Sermon on the Mount.

St. Alphonsus Liguori is known as the “Prince of Moralists” and is the patron saint of confessors and moral theologians. His authority on matters of Christian ethics is hard to overstate. As one commentator notes, Pope Gregory XVI “decreed it safe to follow St. Alphonsus’ opinion, even if you do not know the reason behind it – a badge of honor Rome has given no other saint” (Fr. Joseph Maier, quoted in Fr. Christopher Rengers, The 33 Doctors of the Church).

Now, in Chapter V of his book Instructions for the People, St. Alphonsus writes:

It is lawful to put a man to death by public authority: it is even a duty of princes and of judges to condemn to death criminals who deserve it; and it is the duty of the officers of justice to execute the sentence; God himself wishes malefactors to be punished.

In his treatment of the Fifth Commandment in his Theologia Moralis, St. Alphonsus grounds the legitimacy of capital punishment in scripture, including a reference to Romans 13. Like the other Doctors just cited, St. Alphonsus is here providing moral guidance for the Christian faithful, not merely speculating about what might be theoretically possible under natural law.

The opinion of the Doctors was shared, historically, by other ecclesiastically approved theologians. As I have emphasized elsewhere, even Brugger concedes in his book Capital Punishment and Roman Catholic Moral Tradition that there existed a “patristic consensus” on the legitimacy in principle of capital punishment and on the grounding of this teaching in scripture, particularly Romans 13. This was so despite the opposition of some of the Fathers to Christians making actual use of capital punishment. Brugger also notes that by the end of the Middle Ages, a “Catholic consensus” had emerged that abandoned the reservations of these Fathers, and which continued to regard the legitimacy of the death penalty as the teaching of scriptural passages such as Romans 13. This consensus persisted until very recently. Brugger surveys a large number of manuals of moral theology and other theological works from the nineteenth and early twentieth centuries, and writes:

These manuals and other works are a representative sample of the positions held and taught by members and scholars of major Catholic religious orders, including the Jesuits, Dominicans, and Redemptorists. They served as episcopally mandated and approved sources for the formation of Catholic consciences for clergy and laity alike. Several are even published with letters of commendation for the author from the reigning pope. Thus, although their contents are not necessarily authoritative de jure, their wide influence and distribution make their teachings effectively authoritative.

The first thing a reader notices in these works is the overwhelming consensus on the morality of capital punishment… And all teach that capital punishment is needful for maintaining and defending the common good

The manuals and textbooks appeal to the testimony of Scripture [and] Church tradition… (pp. 125-26, emphasis added)

So overwhelming was this consensus that, as Brugger observes, “abolitionism – as a social movement to abolish capital punishment – became associated in the minds of many Catholic thinkers with opposition to orthodox belief and to the Church” (p. 131, emphasis added).

Brugger, again, is someone who thinks the Church can and should teach that the death penalty is intrinsically evil, so these concessions are significant coming from him. Indeed, it is difficult to overstate their significance. For if capital punishment really were after all intrinsically contrary to either natural law or the Gospel, then given the consensus Brugger describes, it would follow that ecclesiastically approved theologians were for centuries, collectively leading the faithful into grave moral error and were for centuries, collectively guilty of badly misinterpreting scripture. It would follow that even St. Thomas, the Common Doctor whose teaching is “the most certain rule of Christian doctrine”; even St. Alphonsus, the patron saint of moral theologians and the safest of guides to ethical questions; and all the other Doctors too, were all collectively guilty of teaching grave moral error and of badly misinterpreting scripture. Again, if Brugger and Fastiggi are right, it could turn out that they were all guilty of nothing less than leading the faithful to approve of a species of murder, one of the sins that cries out to heaven for vengeance!

But such a supposition is simply not consistent with the teaching of Pius IX on the authority of the consensus of ecclesiastically approved theologians, or with the authority that the Church attributes to consensus of the Doctors of the Church.

Consider also that during the long period of Catholic consensus on the death penalty described by Brugger, the views of priests and laity would not have differed from those of theologians and the hierarchy of the Church. For their views would have been formed either directly or indirectly by ecclesiastically approved manuals of the sort that Brugger says are notable for their “overwhelming consensus on the morality of capital punishment.” Hence if it turned out that capital punishment really was after all intrinsically contrary to either natural law or the Gospel, then it would follow that for centuries the entire body of the faithful did err on a matter of faith and morals. But that is not consistent with the teaching of Lumen Gentium.

Destroying the village in order to save it

Theologians like Brugger and Fastiggi try to minimize papal statements and traditional scriptural interpretations like the ones cited above, on the grounds that they are fallible. But as I have argued, they thereby miss the point. If an individual marble weighs less than an ounce, it doesn’t follow that a whole bag of marbles could weigh less than an ounce. Similarly, even if this or that individual papal statement or scriptural interpretation is fallible, it doesn’t follow that two millennia of ordinary magisterial teaching could be fallible. It is not enough, then, for Brugger or Fastiggi to cast doubt on various particular papal statements or scriptural interpretations (though as I have argued elsewhere, they fail to do even that much). In order to justify their claim that the Church could reverse her traditional teaching on capital punishment, they would have to show that it is possible for the ordinary magisterium to be wrong even when it has consistently taught something for millennia. But as we have seen, that is not possible.

Fastiggi in particular seems motivated at least in part by a desire to defend Pope Francis’s statements on the death penalty, some of which seem to conflict with traditional teaching. His loyalty to the Holy Father is admirable, but this way of showing it is misguided. For one thing, the pope’s statements on this subject are persistently ambiguous. Joe Bessette and I analyze a number of Francis’s remarks about capital punishment at length in our book, and I devoted a recent Catholic Herald article to his most recent statement. As we have shown, while Pope Francis has certainly said things that appear to imply a reversal of traditional teaching, he has also said things that point in the opposite direction. Furthermore, the pope is also prone to making obviously exaggerated remarks on this subject. For example, in a 2015 letter, Pope Francis approvingly quoted a remark he attributed to Dostoyevsky to the effect that “to kill a murderer is a punishment incomparably worse than the crime itself” (emphasis added). In that same letter and elsewhere he has also condemned life imprisonment. Does that mean that Catholics are obliged to consider the Nuremburg judges who sentenced Nazi war criminals to death as “incomparably worse” than the Nazis themselves? Does it mean that these war criminals should not have been punished even with life sentences, let alone death? Presumably not, but then it is not clear what we are supposed to take away from the pope’s remarks.

For another thing, the pope’s remarks about capital punishment are part of a larger pattern of statements, on a variety of subjects, that are ambiguous, exaggerated, and doctrinally imprecise. Even Brugger has expressed alarm at statements from Pope Francis that appear to contradict Catholic teaching on contraception and on marriage and divorce, grace, conscience, and Holy Communion. The pope has also often refused to clarify his more problematic statements even when such clarification has been formally requested by eminent theologians and members of the hierarchy. In general, then, the pope does not appear to be interested in making clear doctrinal statements one way or the other.

The proper response to this highly unusual situation is surely one of great caution. While it is true that Pope Francis has not clearly reaffirmed traditional teaching on capital punishment, it cannot be said that he has clearly rejected it either. Indeed, Fastiggi himself has said that “it’s not clear whether Pope Francis has himself taken [the] position… that the death penalty is intrinsically immoral.” But if the traditional teaching is ancient, unambiguous, and explicitly intended to clarify doctrine, whereas Pope Francis’s remarks are very recent, unclear, and not necessarily intended to revise doctrine, then the latter can hardly justify calling the former into question.

Finally, even if Pope Francis had clearly and unambiguously taught that capital punishment is intrinsically evil, that would not justify rejecting past papal teaching. For as we have seen, that past teaching is irreformable. If Pope Francis or any other pope were to contradict it, he would simply be guilty of a doctrinal error. While papal error of this sort is extremely rare – there are only a handful of possible cases in two millennia of Church history – the Church recognizes that it can happen when a pope is not speaking ex cathedra. And there could be no surer sign that it has happened than if a pope were to teach something that contradicted the unanimous teaching of scripture, the Fathers and Doctors of the Church, and all previous popes.

Archbishop Charles Chaput, despite his firm opposition to capital punishment, has stated:

The death penalty is not intrinsically evil. Both Scripture and long Christian tradition acknowledge the legitimacy of capital punishment under certain circumstances. The Church cannot repudiate that without repudiating her own identity. (Emphasis added)

The reason the Church cannot repudiate it without repudiating her own identity is that to repudiate this teaching would be to affirm that the ordinary magisterium has been leading the faithful into grave moral and doctrinal error for two millennia. That would entail that the ordinary magisterium does not, after all, enjoy divine assistance, so that the Church is not what she has always claimed to be.

Accordingly, defending Pope Francis by calling into question the clear and consistent teaching of two millennia is (to borrow a notorious expression from the Vietnam War era) like destroying a village in order to save it. It undermines the credibility of all popes, including Pope Francis himself. It’s that simple, and that serious.

About Dr. Edward Feser 8 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.

53 Comments

  1. Of course.

    Those that insist that Capital Punishment must be formally declared “intrinsically evil” have forever the backdating problem.

    Fastiggi and his followers cannot give an adequate answer to Dr. Feser without declaring the Catholic Church not the Church Christ founded.

  2. Another excellent article by Dr. Feser. I find the argument from the First Vatican Council statement particularly strong. Of course, some might argue that that the teaching that the death penalty is intrinsically immoral is *not* novel in the sense the Council means. However, the burden of proof is surely on the people who would argue such a claim. Given the continuity of magisterial statements on the issue, that is a tough burden to bear.

    Nonetheless, I think anti-death penalty Catholics will turn their main focus to the second question. As Dr. Feser explains, “First, is capital punishment legitimate at least in principle, or is it always and intrinsically wrong? Second, even if capital punishment is legitimate in principle, does Catholic teaching allow for it in practice today, and if so, under what conditions?”

    They will argue that even if the death penalty is not intrinsically immoral, Catholics are only permitted to support its use in the most rare conditions where it is used as self defense for society and to protect innocent people. They will argue that in an era of maximum security prisons, Catholics are not permitted to support executions in the United States. Perhaps Feser and Besette will write a future article addressing this second question.

  3. Brilliant and pellucidly clear. Highest kudos to Drs. Feser and Bessette. Note that this subject and its theological implications is still another are where Pope Bergoglio’s theological ignorance or incompetence verges into heresy.

  4. They will argue that in an era of maximum security prisons, Catholics are not permitted to support executions in the United States.

    In this day of gangs and organized crime in which whole cadres of men work to upset the operations of the police and justice systems – including with regard to men already prisoners for convictions – we cannot keep society safe without putting such men to death. They continue to threaten (and make good on threats) against other prisoners (who might turn state’s witness), guards, jurors, police, prosecutors, and judges. A policeman who gives testimony in open court – under his own name – can be taking into his hands not only his life but of his family as well. This is an intolerable situation, and while it is “rare” in terms of what percentage of persons present such dangers to society (probably less than 0.001 percent of all persons), it is NOT AT ALL RARE with respect to persons who are members of gangs and mafias.

    The circumstantial and prudential judgment that such cases that require the DP are “rare, if at all” is AT BEST one that obtains only broadly and approximately, whereas judges must make decisions about cases individually and specifically, and the broad approximation may be simply not applicable in any one given case. At worst, the prudential judgment may be simply wrong, and there is nothing offensive to the Faith in saying so, for the Popes have no special writ of protection from error in making such estimates.

    • Tony,

      Interesting points. Your judgments here seem to operate in the paradigm that anti-DP folks accept. Namely, that capital punishment is only permissible where it is the only possible way to protect others from the aggressor. You make some good points that these cases may be less rare than is often supposed.

      Nonetheless, Feser and Besette suggest a radically different paradigm. They argue that we need not accept that the death penalty is only permissible where it is *the only possible way* and that a traditional approach to the death penalty allows it to be used for retributive justice and deterrence (even when it’s not *the only possible way*).

      However, that’s not what Feser is arguing here. They do argue that in By Man, and I hope Feser continues to defend the claim in future articles.

  5. Anyone seeking a deeper understanding of the positive effects of capital punishment would be well advised to read The Consolation of Philosophy, by Boethius, or Herman Melville’s short story “Billy Budd.” One is a factual, the other a fictional, account of a man unjustly condemned to death who nevertheless overcomes his bitterness and self-pity and, recognizing the blessing in his misfortune, seizes the opportunity to save his soul. Atheists and agnostics, depending on their temperament, view capital punishment either as just or vengeful. Only the faithful, however, can see it for what it really is: the ultimate act of mercy.

    Assuming that eternal life — in heaven or hell — awaits us after our brief sojourn on earth, anything that redounds to our salvation must be counted as more valuable than human life itself. Far from being inhumane, then, a death sentence is one of the greatest blessings we sinners can receive. By focusing the mind on the mortality that most of us ignore, it provides a compelling incentive for reconciliation. This applies even to those rare few who’ve been falsely convicted.

    How many “victims” of capital punishment (not to mention terminal illness) might have been damned without the knowledge of their imminent demise? Do they share our mortal squeamishness in paradise? Not likely. They undoubtedly conclude, and rightly so, that we place too much emphasis on this life and too little on the next.

    • Would you support the death penalty for heresy or apostasy as well? Your argument would support that it seems. Perhaps threatening death to anyone in mortal sin as an act of mercy as well? Please. I favor limited government. That’s why I don’t want to give the government the power to kill its citizens.

  6. I have problems killing a flea. I have sat on a jury in a number of criminal trials. None involved capital crimes. We always seemed to ask “does the punishment fit the crime”? Once the verdict was rendered the convicted was always given a number of repeal options. If appeals are granted by a judge in a capital case why do the defense attorneys execute those appeals in an attempt to reverse the verdict? The only concern for the church is the continual execution of innocent people. That’s when the appeals stop!

  7. How we went from the complete Biblical mind of Pius XII to the selective verse only cafeteria Biblical minds of St. JPII and Benedict in thirty years is one of the mysteries of the universe. The latter two told laity in this matter….that longevity and Biblical verses don’t count…as soon as they both campaigned for dp abolition and effectively dissented from their own ccc 2267 which was defective in their eyes for reasons different from the reasons in my mind. It’s chaos at the top and if Cardinals elected then a man who thinks life sentences are also wrong, well then we’ve entered bizarro world for sure and we should all be thankful that life is short relative to those long lived early Bible figures….imagine watching hundreds of years of the Vatican trying to please the Nobel jury and the NY Times editorial staff and Amnesty International…in all violence areas. There isn’t enough lower priced single malt scotch to get me through it….(Grangestone….< $30….you'll bless me for the tip). St. JPII got a taste of illegitimate power when he declared slavery and torture intrinsic evils in section 80 of Splendor of the Truth….based simply on Vatican II calling them "shameful". He upped the stakes. Trouble is…Scripture affirms " a rod for the back of fools" at least three times and states in the usccb website no less…" 30 Evil is cleansed away by bloody lashes, and a scourging to the inmost being"….Proverbs 20:30 with no footnotes from the nab whose writer for that book may have passed out reading v.30.
    Verse 30 is at once an affirmation of torture and a veiled prophecy of Christ's scourging…Isaiah…" by His stripes we were healed". Leviticus 25:44-46,7? affirms slavery which hopefully Amazonian uncontacted tribes are using since nomads don't build prisons and are tempted thus to use execution for minor crimes…slavery saves nomads from that sin gestalt. If your daughter was kidnapped and left dying in a woods and the captured kidnapper would not give her location to the police, they should have permission from a judge to administer nerve pain until he does. I once had a compound fractured forearm straightened by my fingers being placed in a chinese handcuff and a bag of weights put on my bicep with no anesthesia. Sure I screamed but a guy in the next room was going through worse with an open chest …because he had me beat in the screaming department.

  8. Interesting points. Your judgments here seem to operate in the paradigm that anti-DP folks accept. Namely, that capital punishment is only permissible where it is the only possible way to protect others from the aggressor.

    JohnD, not at all. I ONLY addressed myself to the opinion that JPII expressed, that such “need” is rare.

    In fact, I completely agree with Feser and Bessette, and have been arguing the same position for 25 years in blogs and bulletin boards: that natural law supports the DP and that in general the state should expect to use the just, proportionate punishment, and while there are exceptions where the state should limit itself to lesser punishments, the arguments that we “must” always do so (use lesser punishments) in the cases of capital crimes are completely inadequate.

  9. Intrinsically wrong? No.

    Prudent in the modern age? Able to apply without risk of injustice? No to both.

    This might come as a surprise to Americans but first world democracies the world over do not have the death penalty. They have lower murder rates, less repeat offenders and are generally safer (and as a result more free) than the USA. Notice it’s only Americans who hand wring over this? Most of the first world has moved on and is doing quite well.

    • Actually you, Andrew…maybe formerly called samton 909, know that Europe and Canada and New Hampshire and like states….have minuscule immoral poor populations….ergo few murders. Baltimore, Chicago, Bronx, Bedford Stuvesant, Birmingham, Mexican Sinaloa, El Salvador, Honduras….not only have many poor…but they have immoral poor as a high percent of the poor….unknown in Europe even though Europe was responsible for much of the slave trade…it escaped the consequences.
      Ergo…you are not seeking the truth in this area….so you compare sanitized countries with countries with large post slavery populations. You are seeking the protection of a narrative version of Catholicism in which two Popes helped your life outlook and you will protect their every thought even if you know some of their thoughts were bizarre….like St. JPII wanting the West to not interfere with Hussein invading Kuwait or Benedict declaring that the OT prophets…” challenged every form of violence…individual or communal”…perhaps the most ludicrous scripture error ever enunciated by a Pope…Verbum Domini sect.42. You have shown me like no other person….the intoxicating power of a narrative….a configuration of key belief points that mixes true and false but protects the holder from seeing his heroes called to account.

      • a) I’m NOT “samtron 909”.
        b) Your response makes little sense. Comparing the USA to all its first world peers is a fair comparison. Yes, America has unique social problems that it has failed to address, but killing people is hardly the way to solve them. The fact is that America is less safe and free than its other first world counterparts.
        c) Finally, I have no idea what “immoral poor” are. If poverty is the source of these problems then perhaps the US should address these inequalities through progressive programs and education.
        d) Both St. JP2 and Benedict are right. The death penalty is theoretically licit in particular circumstances, but modern prisons have made it unnecessary.

        • Samton used the same phrase….” your response…made no…sense”. And he resisted any new data about the research deficits of those two Popes. And he used repeitition of penology cliches ad infinitum. I believe you have a body double somewhere there in Europe with you…a doppleganger. Brazil and Mexico, both non death penalty, are the two largest Catholic populations on earth…and their prisons do not remotely resemble the safety of Euro prisons…the only ones imaged in ccc 2267. But you know all this Andrew. You know that murders happen frequently in the prisons of those two largest Catholic non death penalty countries.You know that by UN data…a Catholic non death penalty area from Brazil to Mexico is the most murderous area on earth and death penalty dominant Asia is the number one safest area on earth. You know this. Your job is to obfuscate that data to the defense of two Popes….to whom you feel indebted…for some reason. Good luck.

  10. I commend Prof Feser for his desire to defend his position, and I thank him for taking some of my points seriously even though he doesn’t agree with them. Obviously an article of the length he gives deserves a detailed response. Right now, I don’t have the time to do that, so I’ll make a few points. First, I should note that Feser cites Lumen Gentium, 12 in support of the universal agreement of the faithful on matters of faith and morals. He fails, though, to mention that this universal agreement “is exercised under the guidance of the sacred teaching authority, in faithful and respectful obedience to which the people of God accepts that which is not just the word of men but truly the word of God.” This last sentence underlines the role of the magisterium in determining whether a teaching is definitive and infallible or whether it isn’t. Prof. Feser and his followers have every right to argue their case that the legitimacy of capital punishment in principle is an infallible teaching of the ordinary and universal magisterium. It’s always helpful, though, for the magisterium itself to confirm that a teaching is infallible by means of the ordinary and universal magisterium—as St. John Paul II did in Evangelium Vitae with respect to the grave evil of direct abortion (n. 62) and euthanasia (n. 65).

    Trying to determine which teachings are infallible by virtue of the ordinary and universal magisterium, however, is not any easy task. In his article, it would have been good for Feser to cite Lumen Gentium, 25, which notes that the ordinary and universal magisterium is infallible when the Catholic bishops “maintaining the bond of communion among themselves and with the successor of Peter, and authentically teaching matters of faith and morals, are in agreement on one position as definitively to be held.” This sets a very high standard, for it’s not so easy to verify whether the bishops, teaching in communion with the Roman Pontiff, have come to an agreement that one position (unam sententiam) on faith or morals must be definitively held.

    I’ve been teaching Catholic ecclesiology at the university or seminary level for over 30 years, and I’ve learned to be very careful when giving examples of teachings that are infallible by virtue of the ordinary and universal magisterium. I try to choose examples in which there can be very little doubt for faithful Catholics. For example, the perpetual virginity of Mary has never been defined by either an ecumenical council or an ex cathedra papal pronouncement. But those who have challenged it have been condemned in no uncertain terms (see canon 3 of the Lateran Synod of 649 in Denz.-H, 503 and Paul IV’s 1555 constitution against the Unitarians in Denz.-H, 1880). Moreover, the perpetual virginity of Mary is affirmed in the liturgy (e.g. the Roman Canon). Another example I give is the reality of angels and demons as real creatures of intellect and will and not mere abstractions. The 1215 Profession of Faith of Lateran IV affirms their real existence as does the liturgical life of the Church (how could the empty promises of an abstraction be rejected during the Rite of Baptism?). During the late 1960s and early 1970s, though, some Catholics began questioning the real existence of angels and demons. Bl. Paul VI reaffirmed the existence of angels in his 1968 Credo of the People of God and the Congregation for the Doctrine of the Faith reaffirmed the existence of demons in its 1975 document, Christian Faith and Demonology. When compared to dogmas such as the perpetual virginity or Mary or the reality of angels and demons, the dogmatic status of legitimacy of capital punishment comes across as far less certain. This is not to ignore the sources that Feser cites. Rather, it is a simple recognition that these sources do not reach the level of a definitive judgment of the ordinary and universal magisterium.

    The magisterium itself is usually the best source for determining which teachings of the ordinary and universal magisterium are infallible and which are not. When subsequent popes show they are not bound by judgments of their predecessors, that’s a good indication that those judgments were not definitive. For example, Pope Innocent I in 405 alludes to Rom 13 is granting permission for the civil authorities of Toulouse to have recourse to judicial torture and capital punishment. Pope Nicholas I, however, in 866 states that such torture is not allowed by either divine or human law (Denz.-H., 648). So it’s clear that Nicholas I in 866 did not feel bound by what Innocent I taught in 405.

    St. John Paul II likewise did not feel bound by prior magisterial teachings that seemed to affirm the legitimacy of the death penalty for reasons of retribution. Instead, in his 1995 encyclical, Evangelium Vitae, he limited any possible use of capital punishment to societal self-defense (n. 55). Therefore, he forbad recourse to the death penalty except in cases of absolute necessity “when it would not be possible otherwise to defend society;” and he also noted that such cases today “are very rare, if not practical non-existent” (n. 56).

    Professor Feser, in his book co-authored with Prof. Bessette, states that St. John Paul II’s position “is a mistake, and a serious one” (p. 197). This, though, means that since 1995 the magisterium has been habitually mistaken on a prudential judgment (and it’s really much more than prudential). Feser, therefore, contradicts the very passage from the CDF’s 1990 instruction, Donum Veritatis, that he cites: namely “It would be contrary to the truth, if, proceeding from some particular cases, one were to conclude that the Church’s Magisterium can be habitually mistaken in its prudential judgments, or that it does not enjoy divine assistance in the integral exercise of its mission” (n. 24). To suggest that the magisterium has been habitually mistaken for 23 years on the death penalty seems very problematical. Does not Feser believe that the Church’s magisterium has enjoyed divine assistance in the last 23 years with regard to capital punishment?

    To my mind, it’s much more likely that Feser is mistaken than St. John Paul II and his successors. This is not a “cheap shot” as Feser claimed when I previously noted that his position stood in contradiction to that of Pope Francis. Since when is it a “cheap short” to appeal to the authority of the Roman Pontiff over that of a private scholar? Much more can be said, but this will need to suffice for now. I think Feser’s arguments are convincing to those who already favor capital punishment. They are not convincing to me and many others. If the magisterium in the future declares capital punishment—even under certain conditions—to be intrinsically evil, I’ll abide by the magisterium’s judgment. This would be an indication that there was no prior definitive magisterial teaching on the subject. Feser could shout “error” all he wants, but his shouts could never match the authority of the Catholic magisterium.

    • Robert Fastiggi,
      So to you and the CDF office, the Church could be prudentially mistaken on execution for almost 2000 years but not for the last 23 years. Some of those centuries had prisons far less escapable than the modern prisons of the largest Catholic countries right now…Brazil and Mexico…both forgotten by the CDF author of ccc 2267 whch is farcical in light of those two countries and their prisons…google search these words ” Brazil prisons decapitations”.
      What of the Inquisition 5000 deaths for religious belief stretching from 1253 to ? the 1600’s. Is Donum Veritatis forgetting that period which St. JPII implicitly called immoral by condemning “coercion of spirit” as intrinsically evil in section 80 of Splendor of the Truth? Is the CDF forgetting that Pope Nicholas V turbo charged the slavery of new natives in Romanus Pontifex in 1454 for Portugal ( affirmed in writing by 3 subsequent Popes ) which Portugal suffered no interdict by Popes for the next 500 years of its slave trading despite Pope Paul III saying it’s position was wrong in 1537. The Popes cooperated proximately with the castrati culture for 300 years until one Pope with a declaration ended it in 1878 which showed any of decades of Popes could have done so earlier…hence proximate cooperation. Are you capable of disagreeing with recent Popes at all in this execution matter or have you taken an oath as a professor to submit to them in matters like this. Is your financial position in life bound to your submission of mind in this matter? Catholic theology as a career cannot be leveraged into anything else in the secular world. That’s a big drop down if you are fired for opposing the new death penalty position. Or were you anti death penalty prior to 1997?
      Does your grasp of Lumen Gentium et al guarantee that til death you’ll submit to the Popes in the non infallible…even if they show little evidence that they researched the topic at issue?

    • The difficulty is that the contrast is not between the recent utterances of Francis (and, at the margin, John Paul II) and those of Feser; the difficulty is that the contrast is between the ordinary teaching of the Church for two millennia, and the recent utterance of Francis (which John Paul II never approached). As for whether John Paul II’s prudential inflection was correct or not, this does not directly challenge the validity of the penalty as it has been taught by prior pontificates and presented in the ordinary teaching of the Church. Precisely qua prudential, John Paul’s prudential judgment is susceptible of possible legitimate criticism. In any case, one needs to ask which is likelier–that all prior pontificates, and the Church Fathers, and Thomas Aquinas, and many prior catechisms, should be incorrect in positively teaching the essential justice and validity of the penalty for grave crime–a most important moral question–or that the present pontificate might have suffered error on this particular point in forwarding a teaching that suffers too great a likeness to one of the condemned teachings of the Waldensians? Feser qua Feser doesn’t seem to enter into the equation…

  11. Dr. Fastiggi, you make a good case for caution about drawing conclusions about when the Ordinary Magisteriumm has fixed something as irreformable. However, there is an opposite side of the coin: if one should always be so cautious about drawing such a conclusion that one withholds judgment until the Pope has “settled” the matter, say in the form of Paul IV’s Constitution against the Unitarians, then then very nature of the the Ordinary Magisterium’s capacity to convey protected truth becomes terribly blunted, almost pointless. Men should be able to RELY on what the Church has said repeatedly, from the highest to lowest levels, without ANY significant demur or caveat, from the time of Augustine through the time of Pius XII.

    On a separate note: Pope John Paul II in the Catechism originally (first edition) said that “If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should limit itself to such means because …”

    However, when he came to re-write the passage for the editio typica, he changed it to saying “Assuming that the guilty party’s identity and responsibility have been fully determined, 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.

    Two things to note: first, he changes the criterion of what kind of safety justifies: in the first, “public safety” is a reason to resort to the DP. In the second, only “defending human lives” from that specific “aggressor” is.

    More interesting, though, is the relatively unnoticed change in sourcing reference: In the second, he explicitly avers that “the traditional teaching of the Church does not exclude recourse…” which, if you take it that far, is simply and perfectly and utterly true, could be shown by any 5th grader, or anyone who bothers to read Feser’s book.

    What is less clear (read: confusing, unclear, uncertain, doubtful) is that “the traditional teaching of the Church” ALSO extends to the following phrase “if this is the only possible way of effectively defending human lives against the unjust aggressor.” In fact, it would be hard to provide a solid argument that this qualification of the use of DP is actually “the traditional teaching of the Church.” What I note, for this discussion, is that I am having trouble seeing where John Paul II made any actual showing that this is “the traditional teaching of the Church.”

    Popes are not free to generate protected and definitive Church teaching out of their own opinions, but only to pass on and protect what they received from the deposit of Faith and the teaching of the Church before them. If before JPII the position that the DP MUST be limited to such narrow range of cases was “the traditional teaching of the Church”, then he was merely making more clear what was already present. But if it WAS NOT “the traditional teaching of the Church”, then John Paul II’s assertion about “the traditional teaching of the Church” only applies to the first part of the sentence (recourse to the DP) and *_NOT_* to the second part of the sentence”. And this would leave the second part of the assertion as his personal opinion, or (at least) something a great deal less determinative than “the traditional teaching of the Church”.

    But whether the second part of the assertion is “the traditional teaching of the Church” can be determined by historical survey. There is a clear answer, and it is in the negative – as is clear from all the evidence pulled forth in Feser and Bessette’s book. There is no serious foundation for the thesis that the narrowly restricted qualification on the use of DP is “the traditional teaching of the Church”. Only the FIRST PART of the sentence is the traditional teaching. Only the first part holds the AUTHORITY of “the traditional teaching of the Church.” The second part does not.

    Which means that every attempt to rest overturning the use of DP for either (a) retribution alone without reference to reform, deterrence, or safety of persons, or (b) retribution together with deterrence, public order, and manifesting justice, based on what JPII said in the second part of the sentence, is basically using a fairly weak argument from authority: as of 1997, one pope asserted it as his opinion. As of 2018, two more popes asserted it, rather confusedly, and without any more clarity.

    If I am in error on this, I should like to see a correction. I do not intend to defy Church teaching.

    • Good point, Tony M.

      I’d just add that, logically, one can say: “The traditional teaching of the church does not exclude the death penalty IF &c” without implying an IFF (if AND ONLY if).

      Without that IFF implication, the next sentence could consistently be, say: “The traditional teaching of the church does not exclude the death penalty ALSO for these OTHER reasons (retribution,&c …)”

      But if the “IF” is meant as an “IFF” then this later sentence would be logically inconsistent with the former.

      I suspect the human author intended an IFF statement, which leads to the issue you discuss. But maybe the Holy Ghost intervened, creating a way out …

  12. Moderator: I failed to close the “bold” after the end of the sentence which ends with

    John Paul II’s assertion about “the traditional teaching of the Church” only applies to the first part of the sentence (recourse to the DP) and *_NOT_* to the second part of the sentence”.

    Can you correct?

  13. Also, if one reads John Paul II as having taught “most formally” that “defense” is the only ground for which the death penalty ever may plausibly be used *absolutely speaking* (and not merely as reflecting a–criticizable–act of papal prudence) then indeed this proposition does not seem to be derived from prior magisterial teaching or Catholic tradition generally.

    • I think it’s inaccurate to say that St. John Paul II’s teaching on captial punishment was only prudential. Both Aquinas (ST II-II, q. 47 a. 3 ad 1) and the Catechism of the Catholic Church (CCC, 1806) understand prudence as the virtue by which “we apply moral primciples to particular cases.” John Paul II and the CCC teach that non-lethal means of punishment are “more in conformity with the dignity of the human person” (EV, 56, CCC, 2267). This is a principle not a prudential judgment, and it supports the other principle articulated by John Paul II in Evangelium Vitae [EV], 56, viz., that it is not licit (neque … licere) to impose the death penalty “except in cases of absolute necessity (nisi absoluta instante necessitate), namely when it would not be possible otherwise to defend society.” Now both EV, 56 and the CCC, 2267 do invoke prudential elements (e.g. “the concrete conditions of the common good”), but a twofold principle is laid out that is meant to inform any prudential judgment regarding the death penalty: 1) that non-lethal means of punishment better correspond to human dignity; and 2) that recourse to the death penalty is not licit except in cases of absolute necessity: namely, when it would not be possible otherwise to defend society. There might be legitimate debate about what would qualify as cases of absolute necessity, but those who favor the death penalty have the burden of proof to show that recourse to capital punishment is the only possible way of defending society.

      Pope Francis has now added more reasons (derived from the Gospel) for rejecting the death penalty. We should, of course, respect tradition, but there are traditions that can be changed or developed and others that cannot. Just as the tradition accepting torture has now been superseded (cf. GS, 27, and the CCC, 2297)so now the tradition accepting capital punishment is being superseded. The fact that Pope Francis and the overwhelming majority of bishops now reject capital punishment is a sign that there never was a definitive magisterial tradition on the matter.

      • Robert, I find it hard to believe that you check any data on prisons. I’d rather be executed than sodomized in a Brazilian jail. Suddenly we have an entire intellectual class who are trained in theology but ignore deterrence studies as in the four year compilation one done by SCOTUS in 1976….which found that executions saves lives….execution is pro life. Apparently our Popes know a secular science by infused knowledge. Ccc 2267 bizarrely never addresses deterring future murderers…only the ones you caught. Catholic Quatemala catches only 4% of murderers…lol.
        What you’ve proved is that the general magisterium has turned ultra liberal on violence issues ( partly careerism) while they ignore the recent UN data that non death penalty northern Latin America is the highest murder rate region of the world and death penalty dominant Asia ( also with millions of poor ) is the safest area on earth from criminal murder. Google the data easily. Part Catholic Brazil has 50,000 murders a year ( no death penalty ) and China has 11,000 murders a year with 7 times the population of Brazil. If Brazil had China’s murder rate, it would save 49,000 lives a year. Their similarity? Millions of potentially violent poor….unlike Europe and Canada. The Taiping rebellion of mid 19th century killed 20 million Chinese.
        You live in an ivory tower of papal texts …no deterrence studies…circumvented scriptures. Papal texts are higher in your mind than the Holy Spirit clearly saying that the state carries the sword…as what Robert?….as defender of lives only? No…not mentioned. As a Minister of God’s wrath. The death penalty executes God’s wrath. Contradict that and may God kick your butt here on earth rather than in damnation. Take His wrath as Aquinas did….as an anthropopathism for God’s will not literally for emotional wrath…fine. It’s still God willing to hurt bodies as He did in 70 AD to 1.1 million Jewish bodies in Jerusalem according to Christ’s words ” because thou hast not known the things that are for thy peace”….and God did it partly to communicate a message on hell to all of us. Execution signs…symbolizes hell.
        You just had three Popes in a row who couldn’t be sure Judas was in hell. Two really….Francis bases his hope in Judas’ sainthood on a statue in a Church in Europe that has Christ carrying Judas on His shoulder with a smile on one side of his lips. These are the Popes you listen to instead of to God through Romans 13:4 and Gen.9:5-6 and the thirty plus death penalties of the old law given by God only to the Jews and rarely having anything to do with defending lives.
        You now have three Popes who are experts on penology in their own mind…but without referencing that science at all….even not referencing the writers on their side. And check ccc 2297 on torture…it’s dumb wording condemns Christ’s whipping the money changers out of the temple and it contradicts Proverbs 20:30…and multiple scriptures.
        But scripture is quite secondary isn’t it Robert. A Pope who wanted Poland defended when young but Kuwait scarificed to Hussein when old and pacifist …trumps Romans 13:4.
        A second Pope who said all the prophets challenged every form of violence ( Verbum Domini 42) despite Elijah killing 452 Baal worshippers, Samuel killng Agag, Eliseus being mandated by God to kill those who escaped Jehu, and Jeremiah insisting the Chaldeans show no mercy to the Moabites (48:10)….this second late life “pacifist-sometimes” Pope trumps the Holy Spirit in Rom.13:4 too. And of course there’s Francis and his statue in a church that supercedes all Christ’s dire words on Judas. These three men know more about execution than Pius XII whose prisons were identical to theirs. Lol.

      • “The fact that Pope Francis and the overwhelming majority of bishops now reject capital punishment is a sign that there never was a definitive magisterial tradition on the matter.”

        This does not follow, otherwise I could have said, “The fact that Pope Liberius and the overwhelming majority of bishops reject the Athanasian position is a sign there never was a magisterial tradition on the matter.”

        I am not here equating Arianism and opposition to the death penalty except by showing that if your argument works equally well applied to what is (so far) likely the greatest crisis of heresy the Church has ever faced, it does not prove what you think it proves in re this controversy.

        • St. Athanasius in his History of the Arians states that Liberius hated the Arian heresy. The matter is more complex than you realize.

          • I am aware that there was, and remains to this day, dispute as to whether or not Pope Liberius actually believed the Arian heresy, was perhaps sympathetic to it, or did not believe it at all and only wished to maintain peace at any cost.

            That was not the point of my comment. I can substitute Pope Honorius if you like (whom, I know, St Bellarmine defended, but over whom there is overall less debate than Liberius), and the point remains basically the same.

      • That non-lethal means of punishment “better conform to human dignity” may be true without negating the classical view that this is a presumption that is overcome by certain grave crimes. It could be intended to negate the classical view, but it need not be read in such a fashion. As for the proposition that “recourse to the death penalty is not licit except in cases of absolute necessity: namely, when it would not be possible otherwise to defend society,” this is a *conclusion* but if it were taken as absolute, as a principle, then it would indeed simply be contrary to prior tradition and also to ordinary understanding of the distinction between just penalty and defense. The encyclical itself teaches that in defense one who is not morally guilty may be justly killed (e.g., a person with a mental affliction who is not responsible for his action). Clearly this could never be true for punishment as such, which must look to responsibility. So, reading the reference to “defense” as an absolute principle doesn’t make sense in the four corners of the document, much less in terms of the traditional Catholic teaching.

      • By the way, whether something is ordinary magisterium or not is determined as a matter of fact. It is not a question of how many bishops may at some particular time concur (although what has always been held in the past does suggest a different status): if the contrary were the case, the Arians would rather swiftly have been determined to be teaching correctly. And many bishops and cardinals do not concur with this proposition.

      • The claim that the traditional Catholic teaching regarding the death penalty may be superceded is in part a function of the assessment of what constitutes ordinary magisterium. But on this point, it is very difficult to find an account of the death penalty as not being ordinary magisterium that would not largely evacuate the ordinary magisterium of its content. The unanimous teaching of the Fathers—despite their Christian aversion to judgments of blood—that the penalty may be just, itself ought be sufficient (given the teaching of Trent) to indicate that this is not possible. The Church has never accepted that it is a properly papal power to abrogate ordinary magisterium, any more than it is a marital power to contracept or abort. On a grave moral matter, for two millennia, the Church has not only taught that the penalty may be just in some cases, it has also–in the Papal states–under direct papal authority applied the penalty, and approved many catechisms articulating this teaching, a teaching also articulated in various papal statements. Moreover, the middle term of the claim of development–human dignity–is the very reason that Scripture and the tradition take as justifying the penalty. I.e., 1)the unjust violation of the dignity of the person in murder merits the gravest penalty, and where consistent with the medicinal requirements of the common good such violation may justify the application of the penalty as expressing the moral judgment that some crimes clearly merit death; 2)the human person being created in the image of God, is such that just application of this penalty does not of necessity prevent the person from achieving his final end, if suffered with contrition and in expiation of sin; 3)it is the dignity of the human person that calls for punishment for crime as such–we do not tend to have trials assessing the knowledge and culpability of beasts when they kill human beings. Genesis 9:6 does not say that because man is created in the image of God the death penalty is not permitted, but indicates that it is the very dignity of the rational creature that founds the rationale for the death penalty when that dignity is criminally violated. There is a sense in which the death penalty is “per se contrary to the Gospel”–but not in the sense of injustice or absolute contrariness to human dignity. That sense is that both in the beginning, and in the beatific vision, death has no place. The eschatological witness of the Church in teaching that death has been swallowed up in victory is essential. But simply speaking, given the reality of the Fall and of horrifically evil action, the Church has taught for two millennia that killing—in the death penalty, in war, and in defense—may be just. It simply is not clear how a Roman Catholic can be obligated on these matters to become a Waldensian or Mennonite. On a lower but still important level of discourse, such a judgment would also seem to deny philosophically certain judgments regarding the transcendence of the common good, and its superiority over private good in any genus. When Christ was told by the “good thief”—whose crime may very well have been something like looting and murdering—that while Christ did not merit the death penalty, he himself did, Christ did not instruct him to the contrary. Rather, it was He who moved him to that contrition and desire for eternal life so as to open for him the portal to Heaven.

  14. The real depressing factor in all this is that, when its time comes, liberal forces unlike in this hard push to debunk 2000 years of Church CP history will then take the soft easy path toward euthanasia and its eventual acceptance

    • I’m very sorry, but I think the 2,000 year tradition is something of a myth. Before Pope Innocent I’s permission in 405 for public officials to use torture and capital punishment there was nothing handed down in prior tradition (as Innocent I himself states). Some of the patristic sources cited by Feser and Bessette do not really show support for capital punishment (not even in principle). The teaching against euthanasia is definitive, and has been confirmed as such. Church tradition in support of capital punishment was never definitive. This is why the last three popes have all called for the end of the practice.

      • Robert,
        In the first 5 centuries, the bulk of the active Catholics would have had the good thief’s words ringing in their ears if they had no copy of Romans…… ” we are getting what our deeds deserve but this man has done nothing wrong”…Lk23:41. Keep in mind…Fr. Raymond Brown had not yet been born so hop scotching over verses or slithering around them was mostly unknown which one can still see in Augustine, Jerome and much later in Aquinas. And yes I think Brown did some good and some bad…and the bad spread more easily and further. I kept two of his books and threw one in the recycling bin…the one that taught Catholic clergy that Mary never said the Magnificat but Luke got it from Palestinian anawim and put it in Mary’s mouth so that she’d sound OT and all…though he had no textual proof whatsoever if you recall from Birth of the Messiah…?page 344-345? Memories of modern Catholic prophets…how time flies.

        • Bill: Thank you for your postings. I try to follow Scripture according to the mind of the Church. If the recent papal magisterium had not spoken out against capital punishment, we could have a good debate over the subject. I am only trying to follow the mind of the Church. Like Pope Francis, I think we should work for penal reform and better prison conditions. As for deterrence, many studies do not support your findings: https://fullfact.org/news/do-countries-death-penalty-have-higher-homicide-rates/

          • Links on that topic can be all over the board. None are neutral. The only high murder rate countries who have the death penalty are those with bare police coverage….Sudan might be one. No one fears execution if the capture rate is 4% as in Guatemala. Much of the Caribbean is high murder rate due to bare bones police coverage. But where you have both coverage and execution SOON ( not like the US)….you have incredibly low rates of murder. China now .74 per 100,000 and is safer than almost every Catholic country on earth except affluent small Monaco etc….affluence suppresses murder also thus Europe. Not safe for preborns…but that rate is like NYC….and coerced often.

            Thinking with the Church and Pope Nicholas V in 1454 meant you could enslave and despoil new natives who resisted the gospel…Spain thus removed most of Peru’s known silver which Niaal Ferguson cited as 40% of Spain’s budget in ” The Ascent of Money”. Thinking with the Church in 1537 meant you reversed yourself on that theft after listening to Pope Paul III, the brother by the way of one of Alexander VI’s mistresses.

            All you need is the actual UN data at wiki….for homicide by country…not my tour of it. Superimpose a global map mentally of death penalty countries. You’ll see detail for every country. That page lists Asia as the safest ergo no.1…..Europe 2. Americas…very last. But when you break down the Americas, it is skewed heavily by the worst area….northern Latin America…non death penalty. Second to last….Africa….light application of execution. Asia….heavily death penalty ( often Islam) as a death penalty global map will show. I have no doubt that these last three pacifist popes ( two late in life) will get thousands of mostly poor people killed in Brazil etc. through this new position. The 5000 Inquisition deaths were wrong and that number will pale in comparison to those about to be killed by this new pacifism…for maybe centuries. China has a perfect right in the eyes of God to suppress the Church whenever it agitates for this issue. She does not want to become Brazil or Mexico or El Salvador or Honduras or Belize or Guatemala. Europe has few restive poor from whence murders come usually. The US ghettoes have the same murder rates as Central America’s average…31 and up per 100,000.
            Study the UN data and then a global death penalty map and you’ll avoid the maze of internet links.
            I wish you well but I will pray that God cauterizes you if you need it on this issue. And
            i’ll state my view to God that you do need it. If you don’t need it, nothing to worry about. If you do need it, my prayer is something to worry about…He’ll burn it out of you…but it means He loves you. ” He has mercy on whom He has mercy and whom He wills, He hardens”.

          • It is, at this point, well known indeed that there are “studies on both sides,” and there is not sufficient standing (based on “studies”) to overturn the “traditional teaching of the Church” that punishment deters, and graver punishment deters more.

  15. Is the Catholic Church’s long history of teaching that our Holy Eucharist reception is dependent on first doing a valid Confession and penance non-definitive too? I just wondered, and if that is so, what other real SERIOUS teachings are up for grabs?

  16. Is the Catholic Church’s long history of teaching that our Holy Eucharist reception is dependent on first doing a valid Confession and penance non-definitive too? I just wondered, and if that is so, what other real SERIOUS teachings are up for grabs? If 2000 years is mythical, then how about 1400 years? Is that enough to make it definitive?

    • Thank you, Prof. Feser, for taking note of my comments. I tried to post some comments on your blogspot, but I’m not sure if they went through. In any case, I don’t have time to comment in depth right now. Perhaps in the future I’ll be able to write a more thorough review of your book. For now, I’ll say this. Even if one were to concede that capital punishment was not instrinically evil in the past, that still doesn’t mean one can dissent from the present teaching of the papal magisterium on the subject. You seem to think that, unless capital punishment is declared intriniscally evil, then any teaching about it is only prudential. This, though does not follow. To make prudential judgments there must be moral principles, and St. John Paul II in EV, 56 and the CCC, 2267 lay out such moral principles. The Church does not regard war as intriniscally evil, but she lays out very strict conditions for any possible engagement in war (e.g. CCC, 2309). War, therefore, can only be justified according to these strict conditions. With regard to the death penalty, I am aware of of all the scriptural and historical examples you give, but I don’t believe they set forth definitive principles for deciding if and when the death penalty may be used today. Because the present magisterial teaching on the death penalty is not contradicting any definitive, infallible teaching of the past, it should be adhered to with religious assent according to Lumen gentium, 25 and the CCC, 892. The magisterium need not declare that capital punishment is intrinsically evil to determine that it is against the Gospel to kill a human being without necessity, i.e. when a person’s ability to do further harm has been neutralized and this person retains human dignity in spite of prior crimes.

  17. Dr. Fastiggi, Pope JPII inserted in the Catechism:

    2267 Assuming that the guilty party’s identity and responsibility have been fully determined, 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.

    I suggest that the characterization in the phrase “the traditional teaching of the Church” applies properly to the next 8 words: “does not exclude recourse to the death penalty”. Do you agree?

    I suggest, secondly, that it does not properly characterize the next phrasing: “if this is the only possible way…” if we read this as “ONLY if”. Do you agree with me?

    The Catholic Church has been making comments about the DP for many centuries, and did not stop doing so from Innocent to JPII. If the traditional teaching of the Church during all that time has been that ONLY if the DP is the only way to keep people safe from that specific aggressor, then it should be readily possible to bring forth traditional statements that say that.

    So, that’s a direct challenge: those who wish to read JPII as saying that the characterization “the traditional teaching…does not exclude” applies to the ONLY IF phrase, they must (1) bring forth the traditional teachings that say that, and (2) show that the traditional teaching DOES NOT permit using the DP under any other conditions.

    I don’t think that challenge can be met. But if I am wrong, I dearly would like to know it.

  18. This is an argument that I don’t like to be involved in. The reasons are argument by Feser and Fastiggi have validity. Feser can rightfully claim tradition in favor as settling the issue, while Fastiggi shows there is no “sententia definitive intenda” as cited in the Doctrinal Commentary to Ad Tuendam Fidem for the death penalty to be considered unchangeable doctrine. It appears to fall under the purview of what Aquinas called “human” or civil law as distinguished from natural law. For Aquinas Natural Law here reflects the Eternal Law. Nonetheless there are aspects of natural law that in accord with conditions vary but don’t contradict the essence of natural law. For example withholding a borrowed weapon from an owner intent on murder. The death penalty seems more a matter of civil practicality than unchangeable dogma. That excludes the viability of Fastiggi’s premise that the Pontiff can outlaw the penalty, and excludes Feser’s notion of an absolute moral standard, but ultimately supports Feser’s premise. It is theologically permissible as a matter of the practical execution of justice.

    • Fr. Morello,
      You say that the natural law reflects the Divine Law but in another sentence you connect the death penalty to human or civil law. I connect it to God directly as does Gen.9:5-6 and Rom.13:4…here it is:

      ” for it is a servant of God for your good. But if you do evil, be afraid, for it does not bear the sword without purpose; it is the servant of God to inflict wrath on the evildoer.”

      “Sword” is a synecdoche…ie it refers to all levels of punishment but preeminently the one it symbolizes. We know the Romans executed with the sword because Herod executes James with it in Acts 12:2….” About that time King Herod laid hands upon some members of the church to harm them. 2 He had James, the brother of John,* killed by the sword”. The Greek is the same for the sword in both verses….Acts and Romans. A little later God in Acts kills Herod by an angel….that is Christ, the Father, and the Holy Spirit kill Herod through their servant, an angel. ” He who destroys you, God will destroy for holy is the temple of God and His temple you are” says a later epistle.

      But Romans sees execution by the state as really God using the state… as a servant-Master co-action. When the state helps the truly poor, that is God acting through His servant, the state…when the state executes a real murderer, that is God acting through His servant, the state.

      Two sets of parents at the state of the union speech lost their daughters to MS13 killers. They are still crying and always will. Unforetunately in non death penalty N.Y., the captured murderers will probably adjust to state prison, bond with other ms13 prisoners and shake down weaker prey among their own ethnicity because the much taller blacks and whites will crack them like an egg…as will Dominicans etc.

      Life sentences can be a chance to repent or a chance to indulge in robbery, solitary sex mortal sins and sloth for decades. Execution is largely simply a strong catalyst to repent…as it was for the good thief who in Mark is abusive too to Christ in the early hours. The ms13 humans stand a much better chance of repenting by execution than they do in state prison bonding with other gang members. Execution is very religious. God per Christ’s prophecy executed 1.1 million humans in 70AD in Jerusalem in accord with the Sinai covenant….” punishing those who hate Me down to the third and fourth generation.” Ezekiel seems to say the opposite…” the son shall not die for the sin of the father”. But wait….God clearly executed David’s son for the sin of David. Which is correct? David’s son and Jerusalem’s younger folk were killed but did not enter hell unless for other sins in Jerusalem’s case…fulfilling both the Sinai and the Ezekiel verses. We are all executed for Adam’s sin whether we die in a plane cash or while sleeping…in either case, I doubt that it tickles….even in sleep.

      In section 39 of Evangelium Vitae, St. John Paul II takes Gen.9:5-6 and he cites the fragments he likes after removing the death penalty part from the readers view. He liked that man is made in the image of God….so he and the Bishops later would use that as a reason to not execute. LOL. Look at the text..found in ccc 2260. It’s actually God’s reason for executing murderers….the victim is made in the image of God therefore the murderer has committed sacrilege and God intimately kills only for sacrilege all throughout the Bible….even Onan is killed for sacrilege since he risked the non appearance of Christ who had to come through the house of Judah…a man and three sons. Uzzah was killed for touching the ark/ the sons of Heli killed for abusing the priesthood./ the 72 descendants of Jeconiah for not greeting the ark/ Dathan and Abiram for total contempt of Moses/ Ananias and wife for lying to the Holy Spirit/ Herod for destroying James, the temple of God, and for not rebuking the crowd that called him God.

      Execution….is not simply human…it is Divine per Genesis and Romans. Those daughters killed by ms13 were images of God and thus…. ms13 committed sacrilege per Gen.9:5-6…the verse a saint edited in Evangelium Vitae. ” Image of God” is God’s reason for execution….now in post biblical magisterial circles, that original reason has been transmuted through ignorance into opposing execution. I do partial indulgence work all week at night for murder victims all year….many are girls post rape. I have a man in this town who promised to get me with a pistol after a street fight. It’s New Jersey…non death penalty. He pops me from a passing car with a glock, he gets lifetime prison…free dental, free medical, three meals, airconditioning, heat, no work, no bills…the welfare dream. Yes…I’ve got skin in the game….unlike the post biblical Magisterium in the USA.

      • The Apostle Paul in Rm 13:4 is clearly acknowledging the right of civil authority to apply punishment even a death sentence. If you reread my comment carefully you’ll find that I substantiate Feser’s thesis that there is support for the death sentence in scripture. And I added that Feser’s thesis is the more correct. My point is that the death penalty should be left to the judgment of an assumed ethical civil authority. Also be careful in making generalizations. Your premise of God using the State in implementing the death penalty is similar to Islamic law as practiced in Saudi Arabia, Iran, and the Islamic State in Syria and Iraq.

        • How so? It is Rom.13:4 not bill bannon who says the state is God’s servant that executes wrath with the sword. We moderns may use metaphors humourously…
          scripture doesn’t.
          Islam has the state using the sword in execution against a person who leaves Islam or who denounces the Koran. I spoke only of murderers as does Gen.9:5-6. I see Gen.13:4 as a partner of Rom.13:4. The wrong thing China does is use execution for c.65 offenses though her courts have been ameliorating that…nullifying about 15% of recent cases.

          • Well Bill I’m not arguing against the use of the death penalty. During the era of Christendom when the Church had close assoc with state monarchs heretics were burned at the stake. I don’t disagree entirely with that policy but if a heretic can be responsible for the loss of souls Aquinas deemed it justified. The world has changed and what Aquinas also envisioned was the necessity for a civil legal system in which certain criminal acts are best left to the judgment of magistrates not the Church. Allowance of death penalty within God’s wisdom for the ordering of society is not the same as God demanding a murderer or heretic be executed. That’s the essential difference. Some nations ban the death penalty, a prerogative that should remain with the state while others exercise it in extreme instances, some as in Islam apply it seems excessively. My thoughts on the matter are closer to John Paul II who was against it but agreed it can be applied in extreme cases.

          • Fr.Morello….Saint John Paul II did what exactly against hundreds of crminal perv clergy in 26 countries…

            https://en.m.wikipedia.org/wiki/Catholic_Church_sex_abuse_cases_by_country

            I think he made changes in seminary vetting one year. That’s all I could find. Christ in five minutes decided and drove the money changes out of the temple with a whip. I’m just saying…follow your conscience but don’t follow a person who failed miserably in the criminal department..and in protecting lay children in some cases. In 1979 court records showed, his CDF offce had an audio tape of Fr. Shanley’s pro gay activity speech probably from the man boy love society. About six years later, Shanley was promoted to pastor and molested two boys. Then St. JPII deleted the death penalty from Gen.9:5-6 in EV 39 and had Bishops thinking the image of God phrase was not the very reason for execution…and they then used it as a reason against the death penalty when it was God’s reason for that penalty. Think on your own…avoid the disastrous penology mind of the saint. And I believe he’s in heaven…but for enduring great pain in his last years not for getting poor people killed in the third world going forward which this regression will do. 1454’s Romanus Pontifex was a regression….late 16th century’s Papal castrati involvement was a regression…Papal silence at France’s place in the Opium wars was a regression…( she was the rep of the Pope in China)…. and this 180 degree change on execution is the most lethal regression…wherever it confirms non death penalty countries in their chaos….Brazil 50,000 murder victims a year…China 11,000 vctims a year with 7 times the population of Brazil. Bring China’s murder rate to Brazil and 50,000 victims becomes 1,000 victims a year. 49,000 saved every year. We’re not pro life on this issue….we’d rarher protect three Popes in their mistakes than save 49,000 Brazilians.
            Think on your own.

  19. Looks like the Holy Father settled this question. What does this say for papal infallibility? We know the question will come up…

    • Dr. Feser answered that question. The answer is: nothing.

      “Finally, even if Pope Francis had clearly and unambiguously taught that capital punishment is intrinsically evil, that would not justify rejecting past papal teaching. For as we have seen, that past teaching is irreformable. If Pope Francis or any other pope were to contradict it, he would simply be guilty of a doctrinal error. While papal error of this sort is extremely rare – there are only a handful of possible cases in two millennia of Church history – the Church recognizes that it can happen when a pope is not speaking ex cathedra [and Pope Francis was not speaking ex cathedra]. And there could be no surer sign that it has happened than if a pope were to teach something that contradicted the unanimous teaching of scripture, the Fathers and Doctors of the Church, and all previous popes.”

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