John Finnis is a prominent Catholic law professor and chief apostle of the “new natural law theory” (NNLT) invented by the late Germain Grisez in the 1960s. At Public Discourse, Finnis and I have been debating whether the Catholic Church could adopt the novel teaching that capital punishment is always and intrinsically wrong. Finnis, following the standard NNLT view, claims that she could do so. I have argued that she cannot. Joseph Bessette and I defend this conclusion at length in our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, and I have set out some of the main lines of argument in several essays here at Catholic World Report.
The details can get complicated, but the basic idea is very simple. The Church holds that scripture cannot teach moral or doctrinal error, and that it must not be reinterpreted in a way that is contrary to how the Fathers of the Church understood it and how the Church herself has traditionally understood it. But scripture teaches that capital punishment can be morally legitimate at least in principle, and the Fathers and Doctors of the Church and the popes have always understood scripture as teaching this. I trust the reader can do the math.
This leaves the Catholic who claims that the death penalty is always and intrinsically evil with two options. He can give up this extreme claim. (He might still hold that capital punishment is a bad idea in practice – I’m not addressing that question here.) Or he can give up the Church’s claims about the authority of scripture and tradition – which is really to give up Catholicism itself, since this would undermine the Church’s foundation in the deposit of faith. There is no third option, and it is sophistry to pretend otherwise.
So Bessette and I have argued, and Finnis’s latest response strongly reinforces that judgment. A Catholic theologian ought to look at this issue the way St. Vincent of Lérins, or Bl. John Henry Newman, or the fathers of a Church council would – namely, by asking: What does the constant tradition of the Church tell us? And looked at from that perspective, the matter is cut and dried.
But Finnis approaches the issue instead the way a defense attorney would. His questions seem to be: Are there any loopholes in the tradition? Any way to sow doubt in the minds of a jury asked to convict the view that capital punishment is intrinsically evil of heterodoxy? Any way to get an acquittal on a technicality? The tradition is simply not on his side. His only hope is to kick up enough dust that our view of it is obscured.
Such a strategy would explain an otherwise puzzling fact about Finnis’s article – namely, its complete lack of focus, as it meanders, almost unreadably, through the tedious and pedantic analysis of one bit of minutiae after the other.
Hence, the editorial history of the text of Pope St. John Paul II’s catechism; fine-grained nuances in an obscure sentence in one of Pope Pius XII’s little-known speeches; a purported angel-hair’s-breadth distinction between what scriptural authors state and what they assert – these and other esoterica are presented, at mind-numbing length, as having momentous import of which no one but Finnis has heretofore taken notice. And they are presented as being somehow more momentous than the elephant-in-the-room facts that Pius XII and John Paul II did, after all, explicitly and repeatedly teach that capital punishment can be morally legitimate, and that scripture has for over two millennia been understood to teach the same thing. The implication is that if one pulls on these tiny threads that Finnis has managed to tease out, then perhaps – just perhaps, is all Finnis asks his reader to consider – the entire fabric of traditional Catholic teaching on capital punishment could be made to unravel.
To see that this is Finnis’s strategy is to see through it. And its execution is made only more hopeless by the circumstance that Finnis appears to think that he alone has the dexterity to get hold of said threads. As I noted in my earlier exchange with him, Finnis is harshly critical of Pope Francis’s recent statements on the subject of capital punishment – despite the fact that the pope has seemed to give Finnis something close to what he is pushing for! For the specific way the pope has appeared to reverse past teaching is, Finnis judges, “question-begging and more likely just incoherent and unserious.” To reverse the Church’s traditional teaching on capital punishment, there is, Finnis argues, only “one line of development that would, it seems, be authentic” – and it is Finnis’s NNLT line, not Francis’s.
Such an idiosyncratic defense would be unlikely to succeed even if this were a trial in which Finnis had only to raise a reasonable doubt. But it is not. The burden of proof is on Finnis to prove the tradition wrong, not on the tradition to justify itself before Finnis.
This burden is an extremely high one. To meet it would require, among other Herculean tasks, showing that none of the many relevant scriptural passages – not one – really entails that capital punishment can be morally legitimate even in theory. That in turn requires showing that the Fathers and Doctors of the Church, and all of the popes who have commented on this issue – not to mention the Jewish and Protestant traditions too – were all, for millennia, consistently getting every one of the relevant scriptural passages wrong. We needed to wait for Finnis and like-minded scholars to come along before we could at last properly understand what those biblical passages were really saying. That simply defies belief. Frankly, it is ridiculous.
To see just how hopeless Finnis’s task is, consider the conclusions of E. Christian Brugger, the author of Capital Punishment and Roman Catholic Moral Tradition. Brugger was a student of Finnis’s and is a prominent NNLT writer in his own right. His book has become the “go-to” resource for NNLT thinkers and other Catholic opponents of capital punishment. Finnis endorsed the book as “a model of theological method.” Indeed, as Brugger tells us (p. 5), Finnis himself supervised Brugger’s research for the book.
After a detailed analysis of the evidence, even Brugger admits (pp. 95 and 112) that there was a “consensus” among the Fathers of the Church and within medieval Catholicism that capital punishment can be morally legitimate at least in principle, and that this consensus was grounded in the way the Fathers, the Doctors of the Church, and the popes understood scripture. He admits (pp. 77 and 84) that this consensus included Fathers like Tertullian and Lactantius, who are sometimes wrongly claimed to have regarded capital punishment as intrinsically evil.
Brugger admits that this consensus continued well into the twentieth century, to the point that opposition to capital punishment came widely to be regarded as a mark of heterodoxy and secularism (p. 131). Despite tentatively proposing that some scriptural passages traditionally taken to support capital punishment might be reinterpreted, Brugger admits (p. 73) that existing attempts to reinterpret Genesis 9:6 (“Whoever sheds the blood of man, by man shall his blood be shed”) have failed. Nor does he deny the undeniable fact that the Mosaic Law repeatedly and unambiguously sanctions capital punishment (p. 62). Brugger also rejects attempts to reinterpret Pope Innocent III’s requirement on the Waldensian heretics, as a condition of their reconciliation with the Church, that they accept the legitimacy in principle of capital punishment (p. 107). And in the second edition of his book, Brugger admits that Pope Benedict XVI would probably disagree with attempts (like Brugger’s and Finnis’s) to develop John Paul II’s teaching on capital punishment in a more extreme direction (pp. xviii and xxiii).
Now, when even the Catholic anti-death-penalty crowd’s “go-to guy” – who is, again, a disciple of Finnis – finds that he has to concede so much to the other side, we can be forgiven for judging a priori that Finnis’s efforts are doomed to fail. And to read his latest essay is to find that judgment empirically confirmed.
Mishandling Pius XII
Finnis’s opening move is to accuse Bessette and me of “mishandling,” “mistreatment,” and “incomprehension” of various magisterial texts relevant to capital punishment. His Exhibit A is our discussion of this passage from Pope Pius XII’s 1957 address to Italian Catholic lawyers:
The penal justice of the past… that of the present to a certain degree, and – if it is true that history often teaches us what to expect in the future – that of tomorrow as well, makes use of punishments involving physical pain… and capital punishment in various forms.
Finnis complains that we replace some crucial words with ellipses, that the translation “water[s] down” a key phrase, and that we “quite obviously” misinterpret the passage by taking it as an affirmation of the legitimacy in principle of capital punishment. The pope was, Finnis claims, in this particular passage merely referring to capital punishment without affirming its legitimacy.
What few of Finnis’s readers will realize is that Bessette and I were simply following the translation and interpretation of that passage that Finnis’s disciple Brugger puts forward in his book – a book that Finnis supervised and describes as “a model of theological method.” The translation of the passage that we quote – ellipses, alleged watering down, and all – is taken from Brugger (pp. 129-30). The interpretation is also taken from Brugger, who cites the passage as one of several that show that Pius XII “mentions the death penalty several times, indeed, enough to assure us that he takes its legitimacy for granted” (p. 129, emphasis added).
Hence if anyone were really guilty of “mishandling,” “mistreatment,” and “incomprehension” here, it would be Brugger – and by extension Finnis, who supervised Brugger’s work – not Bessette and me.
But in fact, there is no “mishandling” here in the first place. Finnis points out that the word left out in the second ellipsis is “mutilations,” and he retranslates the words that the passage above renders as “physical pain” as “physical tortures.” He then objects that Pius XII was surely not approving of torture and mutilation.
But there are two problems with this argument. First, the replacement of “pain” with “tortures” in Finnis’s retranslation is tendentious, given that the latter term has connotations that the former does not. Second, Finnis is too quick to assume that Pius XII would not approve of punitive mutilations. As Bessette and I note at p. 170 of our book, in fact there are two occasions on which Pius XII seems to have left open the possibility that punitive sterilization could be legitimate at least in principle.
In a separate address in 1954, Pius XII affirmed the continuing importance of “vindictive” or retributive punishment, saying:
Many, perhaps the majority, of civil jurists reject vindictive punishment… [But] the Church in her theory and practice has maintained this double type of penalty (medicinal and vindictive), and… this is more in agreement with what the sources of revelation and traditional doctrine teach regarding the coercive power of legitimate human authority. It is not a sufficient reply to this assertion to say that the aforementioned sources contain only thoughts which correspond to the historic circumstances and to the culture of the time, and that a general and abiding validity cannot therefore be attributed to them. The reason is that the words of the sources and of the living teaching power do not refer to the specific content of individual juridical prescriptions or rules of action (cf. particularly Ep. to the Romans, xiii, 4), but rather to the essential foundation itself of penal power and of its immanent finality. This in turn is as little determined by the conditions of time and culture as the nature of man and the human society decreed by nature itself.
Now, in an earlier article and in his most recent essay, Finnis claims to find in this passage a repudiation by Pius XII of the traditional use of Romans 13:4 (“[The ruler] does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer”) as a scriptural justification for capital punishment. As I noted in my previous reply to Finnis and as the reader can plainly see, this is sheer invention on his part. Pius XII says no such thing, and in fact is not even addressing the subject of capital punishment here at all.
In his latest piece, Finnis pretends that I have made some damning concession, writing that “if capital punishment is ‘not even referred to’ in Romans 13:4… [then] Feser’s case for capital punishment is deprived of the only New Testament support on which he puts significant reliance.” But as any reader can verify just by looking at my earlier essay, I obviously didn’t say there that Romans 13:4 does not refer to capital punishment – of course it does – but rather that Pius XII wasn’t referring to it. (And Finnis accuses Bessette and me of “incomprehension”!)
In several paragraphs of tortuous prose, Finnis nevertheless tries one more time to manufacture some difficulty for defenders of capital punishment out of Pius’s words. He says that what the pope was teaching here is that scripture and tradition support only the “foundational warrant” of rules of justice rather than their “specific content.” Pius, on Finnis’s interpretation, is saying that you can find a scriptural warrant for retributive justice in Romans 13:4, but not for capital punishment, specifically, as a means of securing retributive justice.
There are several problems with this argument. First, though Finnis says this is the “clear implication” of Pius’s words, in fact there is nothing in what Pius says that requires such a reading.
Again, the pope makes no reference to capital punishment at all in the quoted passage, but only a vague allusion to Romans 13:4 – without quoting it or explaining exactly why it is being alluded to – in the context of a sentence which is itself obscurely worded. Now, as Finnis notes, capital punishment was not actually on the books in Italy at the time Pius XII gave this address to Italian jurists. What the pope may have meant to say to these jurists (if he really had capital punishment in mind at all) is that they should not infer, from the fact that the death penalty was no longer in force in their country, that the deeper underlying retributive principle was itself no longer in force.
Where Finnis goes wrong is in taking this to entail that Pius was also saying that Romans 13:4 gives no support to capital punishment as a general practice. That simply does not follow. The most one could argue is that Pius was saying that while Romans 13:4 did not require maintenance of Italy’s death penalty statute, specifically, the deeper underlying principles – including not only the retributive principle but also the legitimacy in principle of capital punishment as a general practice (whether or not it is actually part of the legal system of some particular country) – remained in force.
Second, if Pius XII really had been saying what Finnis claims he is saying, then he would simply have been guilty of bad exegesis, because Romans 13:4 clearly is in fact intended as a sanction of capital punishment. So I have argued elsewhere, anyway, and Finnis says nothing to show that that interpretation of Romans 13:4 – which, as Finnis and Brugger themselves admit, is the traditional Catholic interpretation – is mistaken.
This brings us to a third problem with Finnis’s reading, which is that if Pius XII really were claiming that Romans 13:4 offers no support for capital punishment, then he would be departing from Catholic tradition. For as I showed in the article just linked to, and as Brugger concedes (p. 95), the Fathers of the Church routinely cited Romans 13:4 as biblical support for capital punishment. As I showed in another article, the Doctors of the Church did the same. But as I noted above and as Bessette and I show in our book, the Church teaches that Catholics are not permitted to reinterpret scripture in a way that is contrary to the way it was understood by the Fathers and the way it has always been understood by the Church. So, if Pius really had meant what Finnis says he does, that would simply show that Pius was in error.
Finnis can hardly object to such a response, because, as I have noted, he is himself very critical of Pope Francis for saying things that seem to imply a departure from the Church’s traditional teaching in certain respects. So how could it be acceptable for Pius to depart from tradition, but not for Francis to do so? Or if Francis cannot legitimately depart from tradition, how could Pius do so? Finnis cannot have it both ways.
Fourth, Finnis’s obsessive nitpicking over this obscure sentence of Pius’s only distracts attention from the glaring fact, which even Finnis does not deny, that Pius XII repeatedly and explicitly taught that capital punishment could be legitimate in principle. To downplay these clear and explicit statements while repeatedly playing up a speculative reading of a single obscure remark is perverse. It is, again, understandable only if one’s strategy is to kick up dust so as to obscure and find a way around what the tradition clearly and consistently says – rather than, as a Catholic theologian should, to affirm and teach what the tradition clearly and consistently says.
Mangling John Paul II
A similar perversity afflicts Finnis’s treatment of Pope St. John Paul II. Though the pope was famously opposed to applying the death penalty in practice, he also explicitly and repeatedly reaffirmed the traditional Catholic teaching that capital punishment can in some circumstances be legitimate in principle. As he does with Pius XII, Finnis downplays what John Paul II actually said and insists that we focus instead on some novel doctrine that Finnis imagines he sees lurking between the lines.
In particular, Finnis claims that some of the material in the Catechism promulgated by John Paul II, when properly understood, entails the proposition that “acting with the intent to kill a human being is inherently wrong” – a teaching that Finnis acknowledges would entail “a change in the tradition” and be “contrary to much traditional teaching and practice.” But once again, to see what Finnis says is “obviously” there in the text requires mind-numbingly convoluted exposition. We must watch Finnis intently as he slowly and delicately constructs a spider’s web of connections between select phrases culled from scattered catechism paragraphs cross-referenced with a passage from Aquinas, compares the English translation of the Catechism with the French from which it was translated as well as the Latin and Spanish versions, plays a ping-pong game of comparison between the 1992 and 1997 versions of the Catechism, reconstructs the thought processes of the editors who made the revisions for the 1997 version, and so on. Then it all comes into view.
Except that even given this rigmarole, Finnis allows that the presentation of the novel teaching he sees in the 1992 version is “poorly executed” and “confusingly formulated,” that it is “not yet entirely coherently” taught even in the 1997 version, and indeed that the new teaching “still awaits a sufficient clarification and stabilization”!
Nor can Finnis’s labyrinthine exegesis do anything to negate the inconvenient datum that when all is said and done – and as Finnis himself acknowledges (he can hardly do otherwise) – both the 1992 and 1997 versions of the catechism still do explicitly reaffirm the traditional teaching that capital punishment can in some circumstances be morally permissible. Thus is even Finnis ultimately forced to admit: “One cannot maintain, and I do not say, that the entire set of propositions in play is unambiguous.”
To say the least. Now, Bessette and I discuss the Catechism at length in our book (at pp. 158-182), where we argue that Brugger’s reading – which is essentially the reading Finnis offers – is simply mistaken. Since Finnis continues to ignore most of what we say there, I direct the interested reader to the book.
But even if Finnis were correct to hold that the Catechism teaches that “acting with the intent to kill a human being is inherently wrong,” what that would show (since this proposition would rule out the death penalty) is that the Catechism teaches a proposition that is – by Finnis’s own admission – in conflict with traditional teaching (not to mention in conflict with other statements in the Catechism itself). And what should we do when a Catechism appears to conflict with traditional teaching?
Finnis answers by example when he criticizes Pope Francis’s recent revision to the Catechism. We should stick to tradition and respectfully request that the bad formulations in the Catechism be corrected. If Pope Francis’s apparent deviation from tradition is to be criticized, then why shouldn’t the deviation from tradition that Finnis (wrongly) attributes to Pope John Paul II be criticized? Once again, Finnis is trying to have it both ways.
And once again, there is perversity in his treatment of magisterial statements. John Paul II’s explicit statements reaffirming that the death penalty can in principle be legitimate should be minimized, in Finnis’s view, because Finnis’s cut-and-paste of the Catechism “shows that John Paul was a tacit opponent, not a supporter” of capital punishment.
But exactly when did ignoring what is explicit and traditional in favor of what is novel and hidden between the lines become a principle of sound Catholic theology? This smacks of a kind of Gnostic esotericism. The Catholic rule must be that of St. Vincent, who held that even if some novel doctrine were to “try to infect the whole Church,” a faithful Catholic “will take care to cleave to antiquity, which cannot now be led astray by any deceit of novelty.”
Mutating scripture and tradition
But hasn’t traditional teaching been abandoned before? Deploying what has now become a cliché among Catholic opponents of capital punishment, Finnis alleges that the development of Catholic teaching on religious liberty and slavery provides a parallel for the change in teaching on capital punishment that he advocates.
But the parallel is bogus. Religious liberty is, to be sure, a large topic. But suffice it for present purposes to note that scholars like Thomas Pink have argued effectively for the abiding authority of pre-conciliar papal teaching on that topic, and for the consistency of Vatican II with that teaching.
Regarding slavery, as I have pointed out elsewhere, we must draw a distinction. On the one hand, there are practices like indentured servitude and penal servitude – prolonged servitude in payment of a debt or as punishment for a crime, respectively. On the other hand, there is chattel slavery – the kind we associate with the early history of the United States, which treats some human beings as the property of others in an unqualified sense. What most people think of when they hear the word “slavery” is chattel slavery. The Church does indeed now condemn chattel slavery as intrinsically evil, but she never approved of it in the first place.
What the Church has in the past taught is permissible at least in theory is indentured servitude and penal servitude. And though Catholic theologians and the Church are agreed that we are well rid of these practices, the Church has not taught that servitude in payment of a debt or as punishment for a crime is inherently evil. Hence, what the Church has done in the history of her teaching about slavery is not to reverse any past teaching, but rather to clarify the difference between what is intrinsically evil (chattel slavery) and what is not intrinsically evil but nevertheless too morally hazardous to approve of in practice (indentured servitude and penal servitude).
Now, Finnis himself acknowledges this. So it is not clear why he thinks there is any parallel here to the case of capital punishment, where what he favors would amount to an actual reversal of past teaching rather than merely a clarification. There is another disanalogy. The traditional teaching of the Church never commanded the faithful to engage in the practices of indentured servitude or penal servitude, nor positively recommended them. The Church merely permitted or tolerated them as not always and intrinsically wrong.
By contrast, scripture in many places does positively recommend capital punishment as something that might be done, and in some cases even commands it. This is obvious in the case of the Mosaic Law. Here is just a small sample:
If a man willfully attacks another to kill him treacherously, you shall take him from my altar, that he may die. (Exodus 21: 14)
He who kills a man shall be put to death. (Leviticus 24: 17)
But if any man hates his neighbor, and lies in wait for him, and attacks him, and wounds him mortally so that he dies, and the man flees into one of these cities, then the elders of his city shall send and fetch him from there, and hand him over to the avenger of blood, so that he may die. Your eye shall not pity him, but you shall purge the guilt of innocent blood from Israel, so that it may be well with you. (Deuteronomy 19:11-13)
Finnis blandly speaks of both penal servitude and capital punishment as having been treated in the past merely as “permissible,” but it is quite ridiculous to pretend that passages like these are merely permitting or tolerating capital punishment. Unfortunately, there are no limits to Finnis’s desperate hair-splitting, and he argues that what matters is that the Mosaic Law never actually makes an assertion to the effect that capital punishment is legitimate in principle.
To see what is wrong with this, consider a very different passage from the Mosaic Law:
If there is among you a poor man… you shall not harden your heart or shut your hand against your poor brother, but you shall open your hand to him, and lend him sufficient for his need, whatever it may be. (Deuteronomy 15:7-8)
Now, should we say that this passage does not teach that almsgiving is legitimate in principle, on the grounds that it there is no explicit assertion to that effect? Surely not. Since the command to give alms presupposes that almsgiving is legitimate in principle, the passage clearly teaches the legitimacy in principle of almsgiving, even if only indirectly. By the same token, the command to apply capital punishment in certain cases presupposes that capital punishment can be legitimate in certain cases. Hence the passages concerning capital punishment clearly teach its legitimacy in principle, even if only indirectly.
There are, after all, many ways to teach something other than by explicitly asserting that it is the case. One can say or do something that logically implies it, or rely on what philosophers and linguists call an implicature, which is a way of saying something even if the literal meaning of one’s words does not logically imply it. For example, if you ask me if I’m going to the party and I answer “I’m busy,” the literal meaning of my words does not logically imply that I am not going to the party, but I have nevertheless managed to convey the message that I am not going.
Now, it would be quite ridiculous to pretend that the scriptural authors were not understood to have sent the message that capital punishment can be legitimate, or that they did not know or intend that they would be so understood. And no one would take Finnis’s farfetched quibbling seriously for a moment who was not anxious to find some way, any way, around having to admit that scripture teaches exactly what everyone has for over two millennia always taken it to teach.
As I have said, the Church maintains that Catholics are not permitted to reinterpret scripture in a way that is contrary to how the Fathers of the Church, and the Church herself, have always understood it. Yet Finnis’s program for reinterpretation extends well beyond the passages already considered. At one place, echoing Grisez, he casually asserts that even “God… cannot kill, because killing is destructive while his intention in acting always is loving and creative.”
Really? This would come as a great surprise to Onan (Genesis 38:10), the firstborn of Egypt (Exodus 12:29), Pharaoh’s army (Exodus 14:28), Aaron’s sons (Leviticus 10:2), Korah (Numbers 16:32), David and Bathsheba’s baby (2 Samuel 12:14-15), Ahaziah (2 Kings 1:16-17), Jeroboam (2 Chronicles 13:20), Jehoram (2 Chronicles 21:14-15), Ezekiel’s wife (Ezekiel 24:16), Ananias and Sapphira (Acts 5:1-10), Herod (Acts 12:23), and the many, many others scripture tells us were killed by God.
With no sense of irony, Finnis, in the course of defending himself against the charge that his position contradicts scripture, casually asserts yet another proposition (“God cannot kill”) that contradicts scripture, and the defense of which will therefore require yet further strained attempts at reinterpretation. Finnis is like the gambler who has already lost so much that he has no alternative but to double down.
The irony goes deeper than this. Finnis and other NNLT writers have, to their credit, expressed alarm over the various ways that churchmen are today saying things that seem to undermine traditional Catholic teaching on basic moral theology, marriage and divorce, contraception, hell, and other matters. What they do not see, or do not want to see, is that their decades-long effort to subvert traditional Catholic teaching on capital punishment has paved the way for these unhappy developments. Farfetched reinterpretations of scripture and of previous magisterial statements, the pitting of a current pope against the tradition, appeal to a purportedly deeper understanding of the Gospel – tactics that were first deployed by Grisez, Finnis, and company against one part of Catholic tradition are now being deployed by others against the rest of it