Unnatural Lawyering: John Finnis’s brief against traditional Catholic teaching on capital punishment

A Catholic theologian ought to look at this issue the way St. Vincent of Lérins, Blessed Newman, or Church councils would, by asking: What does the constant tradition of the Church tell us?

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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


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About Dr. Edward Feser 10 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.

57 Comments

  1. First let me make a judgment on Finnis’ claim of Thomistic reason. Finnis Grisez and Boyle made the preposterous presumption that craniotomy inflicted on an infant lodged in the birth canal is not killing. Rather they argued it’s actually an attempt to “modify” the infant’s cranium so it can be removed. That claim of Thomistic thought is bogus to the extreme. The object of that act is to crush the skull. An act of killing. This is the result of casuistry which Aquinas never taught. Instead he explains the object of the act must be deliberated in context of the conditions of the act. Never is the morality of an act determined morally good by necessary procession from a universal principle. As such we can determine a universal principle to justify immoral acts such as infant craniotomy. Insofar as Death Penalty Aquinas while holding to traditional Natural Law as a reflection of the Eternal Law would first defend the option based on scripture [faith] and reason. Whether a person should be subject to the penalty would depend on conditions such as heinous crime danger to society just response to an injustice. Only the invention of a universal premise such as “Inadmissibility” would fit the casuistic New Natural Law theory.

    • Dear Fr. Morello, I am no expert on the new natural law theory, but I wonder why the late Professor Grisez wanted to resurrect the 19th century debate on craniotomy. As you know, Caesarean sections have largely rendered the matter moot in recent times. The Holy Office also ruled on this matter in 1884 and 1889. Here is what we find in Denzinger-Hünermann:

      3258 In Catholic schools, it cannot be safely taught [tuto doceri non posse] that the surgical operation called “craniotomy” is permitted, as was declared on May 28, 1884, and [likewise] any surgical operation whatsoever that directly kills the fetus or the pregnant mother.

      I don’t believe the Magisterium has ever reversed this decision.

      I’ll leave it to Professors Feser and Finnis to work out their differences over capital punishment. I’ll only mention that it seems possible for the Magisterium to teach that a certain action is “inadmissible” without declaring it intrinsically evil. This was the case with regard to voluntary cremation under Leo XIII. In a May 19, 1886 Decree of the Holy Office, a response of “no” was given to the question: “Is it permitted to command that one’s own or the corpses of others be burned?” (Denz.-H 3188). In a subsequent Instruction of the Holy Office of June 19, 1926, however, we are told that the cremation of cadavers “is not absolutely evil” (non absoluta mala; Denz.-H 3680). An Instruction of the Holy Office of July 5, 1963 likewise said that cremation does not concern “something intrinsically evil” (non ergo agitur de re intrinsice mala; Denz.-H 4400). So in 1886 the Holy Office taught that voluntary cremation was not permitted (i.e. inadmissible) even though it was not declared to be intrincally evil. Perhaps the new revision of the CCC 2267 on the death penalty can be read the same way.

      • @DrFastiggi

        Have you seen the movie Keys of the Kingdom? It would be interesting for speculation on this matter.

        There is a scene where a village has been caught between two opposing armies. After the battle, the villagers lack the manpower to bury all the dead. To prevent pestilence among the living, the priest (reluctantly) allows the bodies to be burned in the huts where they have been stacked.

        The timing would be about right, as the story starts in the late 1800’s.

        It would be interesting to know what the response of the Church would have been at the time or what alternative course would have been proposed, when there are not enough able bodied men to bury the number of dead.

        Obviously, this was not a new situation. One wonders if the Church spoke to this at all during the days of the plague.

        • Dear ThomasL: I never saw the movie, Keys of the Kingdom, but my sense is that the Church made allowances for the burning of bodies in cases of extreme necessity such as plague, war, or natural disasters. The 1886 Decree of the Holy Office was directed against the VOLUNTARY choice of cremation, especially when this choice was connected with Masonic societies. The 1926 Instruction of the Holy Office states that the cremation of cadavers may be permitted “for a certain and grave reason of the common good” (Denz.-H 3680). The preference for cremation, however, was seen “as something impious and scandalous and, for this reason, gravely illicit.” The Holy Office in its 1963 Instruction states that “the Church never opposed or now opposes cremation of corpses under certain circumstances, that is, whenever it is certain that it is done for innocent motives and for grave reasons, especially of a public order” (D-H 4400). The 1963 Instruction also allowed ecclesiastical burials for persons who opted for cremation “except when chosen because of the denial of Christian dogmas or through hatred of the Catholic religion and the Church.”

      • No, it seems you are defining what the word “inadmissible” means by an unsound method. You don’t look and find SIMILAR words in various texts of the magisterium. If you do that, you are just guessing. It is for Pope Francis to define what he means by “inadmissible” very precisely. Until he does that, we do not have any idea what he means by the word, Unfortunately, this is the way he works, and he probably chose that word precisely because it does not have a fixed definition in the’s a tricky little devil .

        Until Pope Francis defines that word very precisely or uses a word that has a known magisterial meaning, I don’t think anyone can know what he meant. And so his addition to the Catechism cannot be understood as magisterial teaching. It is his personal view.

    • Father, is this statement referring to a craniotomy done in an attempt to save the life of a mother after the death of her infant son or daughter, lodged in the birth canal, and it becomes necessary to deliver that infant son or daughter to save the mother’s life?

      “Finnis Grisez and Boyle made the preposterous presumption that craniotomy inflicted on an infant lodged in the birth canal is not killing.”

      • Nancy it is not. Finnis Grisez and Boyle had recommended craniotomy to crush the skull of a living infant. As said in my initial comment their presumption was it is not killing. If the infant were already dead then it could and must be applied to save the mother. If this is not clear respond and I’ll further clarify. Thanks for your interest since these are important questions to resolve.

        • Thank you, Father, for your clear response. Their presumption that the intentional destruction of the life of an innocent infant son or daughter can be justified, and thus that the intentional destruction of the life of an innocent infant son or daughter is not always evil, is deeply disturbing. C-Sections have been done safely for many years so I simply do not understand why Finnis, Grisez, and Boyle would recommend craniotomy. By 1980, I had had two C-Sections and two of my sisters were born in the 1960’s by C-Section. Did Finnis, Grisez, and Boyle ever change their erroneous presumption that craniotomy to crush the skull of a living infant son or daughter, can be justified?

          • Response to Nancy: Finnis Grisez Boyle argue that their intention in craniotomy of a live infant is to save the mother, not to kill the infant. Their error is they parse the object of the act as morally subject to the interior intent of the will mistakenly quoting John Paul II in Veritatis Splendor. However the object of a moral act is in the exterior act of the will, that is the choice of action. John Paul II doesn’t precisely clarify that as does Aquinas in ST 1a2ae 21, 2 that “the proximate end [external act of the will] of an act must be entirely good because every privation of a good in any subject is an evil”. What Aquinas means and what the Church teaches is that moral good or evil is determined by what we do, the choice of act [the external act of the will or materia circa quam] not the intent [the interior choice or form]. That is actually what Pope John Paul stated by distinguishing intent from object in Veritatis Splendor. This may seem complicated for you but simply put we cannot separate the act itself, an evil act such as craniotomy of a live infant from our good intention. Such an act is evil. Insofar as your question whether Finnis & Co changed their views from all indication at least John Finnis and Germaine Grisez held to their opinion.

        • If only it were so easy. Their near-slam-dunk point in their 2001 joint article is that this same dynamic seems to be at play in what might be called “normal self-defense.”

          They are wrong, but untying that Gordian knot requires several novel points, including an integration of per se cause and effect with choice and substance in the context of the object of the action (a development on Long’s approach) which renders substances secondarily affected as “per accidens” subjects of an act’s effects, a clear definition of what an unjust aggressor is (it seems to be those humans with animal or rational appetites causing exterior, inordinate, acts, which in this case would be potentially lethal) as opposed to material principle-based or vegetal-based threats which are acting moderately on themselves (like growing in the womb or just existing as a body), and finally why unjust aggressors do not need to be treated with individual totality, the response seemingly being that the defender partially participates in the state’s authority to suspend individual totality in capital punishment (but without the intention precisely to kill as such on the part of the private citizen, who simply allows it to happen after rectifying the inordinate external act).

          Connery has a great book on abortion in the Catholic moral tradition which examines the historical debate around this in detail. Worth a look.

          • Response to Anonymous: Strictly in reference to the principle of self defense Aquinas offers the best moral argument of a Right to Self Defense. That is Defense narrowed to the least lethal. The person under threat is not free to intend to kill. However if the assailant is unintentionally killed it’s acceptable. That places the moral determinant on the choice act of self defense. Finnis’ argument of an infant placed in the same category of an unjust aggressor is to begin a false premise as you well illustrate. Many states base their legal codes on the similar principle of excess v defect. A civilian or an officer of the law can be charged for use of excessive force. Death intentionally inflicted in self defense [there is considerable controversy regarding justice in killing an assailant when an officer is threatened when other non lethal means are available] or by craniotomy of an infant cannot be justifiably considered a secondary outcome per accidens. The reason again is always the choice of act or exterior act of the will. That exterior act is the object of the act that determines its moral nature. Finally Finnis’ argument compartmentalizes [parses] intent by a presumed intention not to kill when the act itself is designed to kill, which reverses the order of moral sequence and makes intent the moral determinant.

    • If you delegitimize capital punishment because it violates human dignity and is therefor always wrong, then what of a punishment that condemns one to endless torment, forever? Its really a short stroll to “Hell is inadmissible”. At bottom, it is a blatant attack on the Ultimate Authority. Nothing less.

  2. For the past few years the current governor of Washington State (a presidential-candidate wannabe) has declined to approve all executions. Then, in 2018 the state legislature passed a law actually prohibiting capital punishment.

    Benefiting in this the case is a prison inmate who was already serving a life sentence, and who then killed a prison guard. After being convicted earlier of this crime he now goes without punishment since there is no longer a penalty higher than a life sentence. The family of the deceased asks where is the justice in this? Those thinking more sociologically ask where is the deterrent for future prison murders?

    Too complicated?

    A side note:
    Washington State (definitely not a flyover state)is a cesspool on so-called cultural issues. Dominated by its coastal half, the state is (1) the first population in the world to approve abortion by public vote (in 1970, prior to the 1973 Wade v. Roe Supreme Court fatwa); (2) possibly the first state to approve physician assisted suicide (legislation in 2008), (3) the first to approve by a public vote gay “marriage” (a failed 2012 initiative to overturn a legislative decision that had been steered by the homosexual chair of the senate budget committee [think leverage] and then mayor of Seattle [think pension benefits], who then was finally run out of office—even in Seattle!—after five different accusers named him for a decades-past pattern of sexual predation), and (4) as for the green agenda, again in 2012 the first state to approve by public vote the legalization of marijuana.

    To be considered by the legislature in 2019 is (5) a bill that would alter cremation laws so that remains can be used as fertilizer for, say, apple trees (one step short of the 1973 Charlton Heston movie, “Soylent Green”, where human remains were converted into green crackers for direct human consumption–somewhat akin to the sale of fetal body parts).

    (In post-modern theological terms: “anthropological cultural change”?)

  3. Good Lord. If Finnis is truly against the death penalty then why does he leave his arguments open to such mass slaughter?

    • Feser’s highly rhetorical response leaves all Finnis’s arguments standing firm, on John Paul II’s Catechism, the Old Testament, the New Testament, the development of doctrine, Pius XII… Noise and smoke do not make effective philosophical or theological critique.

      And Feser and Finnis are on the same side in questioning the changes made to the Catechism in 2018.

  4. Response to Dr Fastigggi. Finnis’ 1980 Natural Law Natural Rights addressed what was then widely perceived as an either or moral decision, either abort the infant by craniotomy and save the mother or allow both to die. It took decades to repair that view. Carmen Dolea MD Carla AbouZahr MD recommended caesarean section to the World Health Org 2003. Finnis was convinced casuistic procession from a universal moral principle justified the deadly use of forceps if the physician’s primary intention is to remove the infant. G Grisez had developed a framework for addressing all moral questions based on the same premise both believing they presented a stabilizing moral venue during a morally tumultuous time. John Paul II Veritatis Splendor made explicit the error in determining morality simply by intent [Aquinas’ three requirements for a moral act are good intent, circumstances, and object]. Insofar as “It seems possible for the Magisterium to teach that a certain action is ‘inadmissible’ without declaring it intrinsically evil” the use of inadmissible apparently meets that criterion because the word in the negative implies admissibility under certain conditions. Although that Pope Francis declares this as new overriding John Paul II’s virtual impossibility he imputes impossibility. Now certain immoral acts are not intrinsically evil. For example sins that are evil due to circumstances. If circumstances allow it would be a good. Intrinsic evil is found in the object of an act murder, abortion, adultery that is always everywhere under any circumstances or intent evil. The use of inadmissible leaves a certain ambiguity that Pope Francis is indebted to clarify. The answer to your question is yes. If inadmissible is understood as subject to conditions that would allow the death penalty.

    • The problem with Veritatis Splendor (to which the NNL authors contributed) is that it separates object, intention, and circumstance in a way which Thomas would not have approved of… and in so doing, there is room to start talking about “intention” and “object” and “circumstance” in whichever terms one likes, as the psychologism of NNL theorists tends to do. Where exactly are the lines between these things?

      If one takes Thomas’ more integral (albeit more complex) treatment, the answer is easily found in the hylomorphic character of exterior actions – namely, “the thing physically acted on” constitutes the space in which we look for the first round of morally relevant effects.

      From there we can proceed to an analysis of other sets of effects, such as effects in the mother caused by acting on the child, etc. The other problems are solved along the lines I indicated above (but can’t reply to there for some reason). The state, in the case of capital punishment, is functioning in a special way as a special moral agent with respect to a special object, viz., a human substance qua part of society. The defender in the normal case of self-defense only partially participates in this, insofar as he merely has license to abstain from observing individual totality – in other words, he does not have to do a sum-total good to the attacker, he just has to do the good of rectifying the attacker’s bad exterior act which in turn is in proportion with the immediate “negative” effect of self-preservation (which is only logically different than the rectification of the bad exterior act). And yes he must observe the least dangerous means, or else he begins to enter into malice or presumption to act in the role of the state which does not belong to him as a private citizen.

      • Reply to Anonymous’ query 1.16.19: Aquinas’ major premise in exercise of Prudence is The only necessity is deliberation of the conditions of the act. Although John Paul II doesn’t identify this in Veritatis Splendor he rightly declares All acts [of virtue] must be ordered to God. Man inherently possesses that power, called Intellect by Aquinas Apprehension or understanding by translators. It’s the intellect’s actualization in knowing truth a capacity akin to Angelic direct knowledge of truth that is not discursive as in human reasoning. We reason though truth is known intuitively [apprehended]. Otherwise discursive reason has no apodictic end. Deliberation of the conditions of an act implies all the nuances you cite related to intent, circumstances, object. We strive for perfection nonetheless in most instances of moral judgment there are grey areas that I call Leeway. Example is Aquinas’ doctrine of measurement between excess and defect in an act of virtue. The virtuous mean is our goal though arrival at a perfect mean is oft unattainable because of the variables, ever changing conditions of the human condition. So Aquinas responds that arriving close to the mean is success, that is sufficient. For that which is inherently evil we must always be on the mark [although incapable of certitude of discernment that might identify exceptions as in cases of whether one is conscientiously culpable of adultery we necessarily stand by the moral premise]. For a question such as death penalty we’re dealing with an issue that belongs more to the human condition than to a moral necessity. That is why the early Fathers, Pontiffs always declared a right belonging to civil authority to be exercised at their discretion. There was never a moral dictum stating the grievous offender must be executed. This Leeway allows for exceptions of judgment insofar as a practice [death penalty] that is subject to varied, transient conditions and cultural, religious sensibilities.

  5. Who am I to say? Killing anybody in self defense, killing a man raping my daughter or simply housing these creeps at taxpayer expense does not heal the injured person or their family. The church’s apostles seem to place too much emphasis on the guilty person’s existence. I can’t even kill an ant, yet I would kill an invader of my home. Because civil law calls for the death sentence I would not eliminate death row. An eye for an eye.

  6. The death penalty is intrinsically evil and wrong – both in principle and practice. I agree with Pope Francis on this. There is nothing in the New Testament to support it -other than some wishful thinking. I ask this simple question to all catholic proponents of the death penalty- would one justify putting St Paul to death for his complicity in the stoning to death of St Stephen.Answer this question honestly first.

    • Neil,
      You’d have to research whether the Romans in that district were permitting the Jews to carry out Deut. 13:5 which they were doing erroneously but in some cases sincerely perhaps..

      5″But that prophet or that dreamer of dreams shall be put to death, because he has counseled rebellion against the LORD your God who brought you from the land of Egypt…”

      You’ll find Christ affirming the OT death penalty for cursing one’s parents in Mark 7:10.
      You’ll find the New Testament and the Holy Spirit affirming the death penalty in Romans 13:4…which see.

    • Pope Francis has very carefully *not* said that it is intrinsically evil.

      And if you genuinely think there’s nothing in the New Testament that indicates that the death penalty is not forbidden, you haven’t read much, have you?

      And I don’t have to answer your question first, or indeed at all. And do you think God was wrong to make Ananias and Sapphira die?

    • It’s not in the New Testament? Really.

      Listen closely to what Jesus Himself did and did not say on the matter.
      Luke Chapter 23:39-43.
      Now one of the criminals hanging there reviled Jesus, saying, “Are you not the Messiah? Save yourself and us.”
      The other, however, rebuking him, said in reply, “Have you no fear of God, for you are subject to the same condemnation?
      And indeed, we have been condemned justly, for the sentence we received corresponds to our crimes, but this man has done nothing criminal.”
      Then he said, “Jesus, remember me when you come into your kingdom.”
      He replied to him, “Amen, I say to you, today you will be with me in Paradise.”

      Look closely at what the “Good” thief said:
      1. “We are under the same condemnation” – i.e., death
      2. “We have been condemned justly.”
      3. “The sentence we received corresponds to our crimes.”

      Now, pay close attention to what Jesus says in response – NOTHING!
      Our Lord did not correct or abjure a single syllable of the Good Thief’s discourse in rebuking his condemned associate.

      This is THE sound Theological, Scriptural and Traditional basis for the death penalty.

    • Human life is Sacred, thus we must protect human life from those who desire to do us harm, thus in “exercising discretion and mercy in imposing punishment on criminals”, it is permissible to have recourse to capital punishment.
      “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.” -Pope John Paul II
      This is different than saying,”the death penalty is contrary to the Gospel and inadmissable”.

      It is important to also note that The Good Thief’s Discourse, is a “Sound Theological, Scriptural, and Traditional basis for”, Baptism of Desire.

      “But one of the soldiers with a spear opened his side, and immediately there came out blood and water.” John 19:34

  7. I know some people who seem to believe that the major purpose of scholarship regarding moral questions is to provide a steady stream of new loopholes.

    • I wish I had time to follow more fully the argumets presented here by these scholars as well as the comments posted by fellow readers. My take on all this is that there is a parity between the absolute right of the communal state to take life and that of parents to create it. Both powers are essentially prolife and compatable with foundational church teaching.

      It is said that in attacking the faith Satan always leads with truth. The great truth here is that no one wishes to deny mercy to one condemned to death when they believe that at some time, all to soon, they will stand before Almighty God where an all out plea for mercy will be quite the thing. The Pope is correct in his assessment of the horrendous plight of prisoners in systems sorely in need of reform despite the efforts of some very good people in these places.

      With the issue of the death pealty, the Vatican is attempting to meet the prerequisites for entre into the “new world order” scheme suggested by Tedeschi. There is an attempt to establish by praxis what canot be done by doctrine. Nullification of the first of the absolute powers mentioned at the beginning of this post is accomplished by cathechism, the expectation that it will be introduced through primary instruction of the laity;the second is produced by the state, through the political measures of the Chinese Communist Party bishops now officially recognized by Rome. The constraint on the rights of parenting will be thought by the church a la the government,s two child policy, which may ironically result in the death penalty for infractions. The Immaculata warned us of all this; the Franciene attack will defeatded. Her Immaculate Heart will triumph.

  8. Pope John Paul II in 1999 at a Mass in St. Louis: “A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil. Modern society has the means of protecting itself, without definitively denying criminals the chance to reform. I renew the appeal I made most recently at Christmas for a consensus to end the death penalty, which is both cruel and unnecessary.” So what is the difference of this statement of PJPII’s from anything that Pope Francis has said, in fact, what is so wrong with answering the “appeal” of a sainted Pope many consider one of the greatest Popes of all time. Maybe if all the “johnny-come-lately” Pope Francis critics would have jumped on PJPII’s statement about the death penalty back in 1999 like they have on PF instead of consistently turning a blind eye to his many so-called “mistakes” for the 27 years of his papacy we wouldn’t be in the mess we are with issues like the death penalty. This is just one small example of how the PJPII cult (those that seem the most critical of PF) is just as responsible or even more so for ending up with Pope Francis than he himself is so maybe stop whining about PF and take a look in the mirror and see how you helped more than anyone and continue to help by your denial to keep many people in a fog about what’s at the root of Church’s problem so they may never be solved. Regardless, getting back to my main point, to try to imply that Pope John Paul II would be opposed to what Pope Francis has said about the death penalty based on what Pope John Paul II himself has already been quoted as saying is absurd.

    • You are correct. All three Popes never mentioned Rom.13:4; never did a study of world prison safety ( simply projected Euro prison safety onto places like Brazil ); changed deterrence’s actual meaning to meaning deterring only the murderer you caught. It took SCOTUS four years to do deterrence comparisons between 1972 and 1976. Three Popes skipped that hard work by just changing the meaning of deterrence. It was a three Pope example of papal abusive clericalism….we have the power, we can give this four days of thought…not four years like SCOTUS.

    • Oh, God. Another JP II hater coming from the whacked out extreme traditionalists. Oh, how they hate him, because he was orthodox and showed them to be rebellious fruitcakes who did not stand for tradition, they stood for rebellion.

      FIRsT, his take on things is very different than Pope Francis’s. Everyone realizes this, the fact that you do not indicates you don’t even want to discuss the facts, you just have to blast a good Pope because you are a dissenter. SECOND, JP II made clear that his position was prudential. The CDF issued a direction to that effect.

      Tricky Dick Francis might want to fool people into thinking his new direction is magisterial and should be read as declaring it intrinsically wrong, but that is just him being tricky. JP iI was clear about the status of his pronouncements.

      • And John Paul II sought world abolition of the death penalty thus rebelling against his own catechism (defective as it was)….and making the death penalty impossible as the prudential choice of the whole world had he been successful. You actually know this samton but I think you were in sales for decades and you believe assertion multiplied overcomes reason and objections. Blitz the comboxes and appeal to iq’s from 100 to 115 and you feel the car will sell.

    • So, John Billbee, I guess you are OK with those of us who criticize Francis’s change to the Catechism if we also criticized JPII’s St. Louis statement? Good enough, I criticized JPII’s statement as being incompatible with Catholic tradition and teaching, as well as being horribly imprecise.

  9. 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.

    You have nailed the technique of all dissenters. This is the technique used by Father James Martin and also by the SSPX and Lefebvre and types like Peter Kwasniewski, who decides and tells everyone that they do not have to respect the church’s judgment when they declare saints. The technique is to throw up isolated quotes from this or that, to get overly legalistic and to throw up as much dust as possible.

    This is the technique of rebellion against the church. It is also the technique used by Pope Francis at times.

  10. it is beyond obvious that Romans 13:4 does not refer to capital punishment. If you read the entire chapter, it is talking about the powers that accrue to civil authorities and those in power. The use of the word “word” in that phrase does not literally mean sword, because that would mean that the only power a civil power had was of the sword, and he had no lesser powers, such as imprisonment. So to read it in the way that Feser does would mean that you could only be executed, and only executed by the sword. No, the word sword here is simply another way of saying “power”, the power to do things to people under their jurisdiction. Too bad that people tend to misinterpret the bible so much.

    • Samton…synecdoche…look it up. Your explanation fails to take into account that if you read the whole Bible, sword, wrath and avenger have nothing to do with double parking your chariot. Go to Acts 12:1-2

      12:1-2 It was about this time that King Herod arrested some who belonged to the church, intending to persecute them. 2He had James, the brother of John, put to death with the sword.

    • In extension of Bill’s reply: When Paul gave the outside limit of punishments in order to indicate the extent of the punishments allowed, he implicitly approved of the lesser punishments that the state may use as well. When you refer to the “tools of the trade” you might list one and not all of them (this is ‘synechdoche’), so you might refer to carpenters using “the hammer”, not meaning thereby that carpenters use hammers and no other tool, of course they use other tools. But when you single out just one item, and it is the maximum possible item, the intent is clearly to include all the lesser tools of the trade as well: imprisonment, fines, loss of privileges… The commentary on Romans 13 to claim St. Paul’s comment “didn’t ‘refer’ to the death penalty” are all gravely flawed.

      So too are the comments that claim “sword” was really the dagger / short sword used by police, not by executioners. The word in Greek is used dozens of times in the NT, and they cover a range of cases of types cutting instruments (including dagger), but the most typical is one that is consistent with the Latin term for “gladius”, i.e. the “Roman short sword”, which was also the sword used by the legions of Rome to conquer dozens of kingdoms and principalities. It was not just a knife or a dagger only used by police to quell fleeing criminals.

  11. One side in this debate has the support of Scripture, Tradition, and the constant teaching of the Magesterium. One side is attempting to upend ALL of that. And frankly, I wonder if their willingness to contradict is driven by emotion.

  12. Comparing issues such as cremation with capital punishment in terms of “inadmissiblity” is like comparing apples and oranges. When the Magisterium made its decision regarding cremation it was responding to a current problem and not contradicting past magisterial teaching. To declare the death penalty “inadmissible” contradicts the Scripture, Tradition, and Magisterium of the Church as previously understood. The issue surrounding this proposition is enormous, because if the Deposit of Faith was wrong for so long regarding capital punishment, then how can we be sure it is correct regarding any article of faith?

    • You hit the nail on the head with this comment. Either the Catholic Church (including Sacred Scripture, most if not all of the Church Fathers, all the Doctors of the Church, and all previous Popes) erred when they stated that the death penalty was licit at least in principle or in limited circumstances, or Pope Francis has erred by saying it is always wrong regardless of circumstances.

      The former is impossible as the Church as a whole is infallible (via the ordinary Magisterium), the latter is possible as individual Popes can and do err, as exemplified by Honorius and John XVII (especially as all theologians and canonists, whether the support or oppose the proposed change to the Catechism, are in agreement the Pope did not speak infallibly on this issue).

      A third option, as proposed by Professor Steven A. Long of Ave Maria University, is that this constitutes a (strongly worded) prudential admonition that the grounds that would justify the use of capital punishment are not currently present in our society, which the faithful must take into consideration in forming their consciences but which they are not obligated to agree with or assent to. Personally, I think Professor Long’s proposal is the only way the proposed change to the Catechism can in any way meet the criteria for “development” of doctrine as laid out by Blessed John Henry Newman.

      • Johann, I am inclined to think you are right, except for one thing (which Stephen Long also does not adequately deal with): in explaining the “inadmissibility”, the revision gives a reason which looks and sounds like it belongs to a basic principle: human dignity forbids the DP in all cases. If there is some way of cashing out the explanatory “because it is an attack on the inviolability and dignity of the person” (which the Catechism quotes from Francis’s 2017 speech) in a way that does not amount to a complete prohibition applicable to all times and circumstances, I have yet to see it. As a result, the easiest thing to take away from the change is confusion.

    • “Comparing issues such as cremation with capital punishment in terms of ‘inadmissiblity’ is like comparing apples and oranges.”

      I made no such simpleminded comparison; I simply listed a sequence of morally-challenged political events in bellwether Washington state. The listed issue in 2019 is not even about cremation as such, but about the whimsical disposal of the cremated remains (another affront to the transcendent dignity of the human person) and, of course, is not equivalent to, say, the “inadmissibility” of capital punishment or anything else on the list.

      So, we are in agreement regarding your overall message.

      • Thank you for the reply Peter. I’m glad we agree on the substance, and I agree with your explanation of your position. My comments were directed at someone else above in the discussion who seems to me, and quite a few others, to be comparing “apples” and “ oranges.”

        • Tom: You seem to miss the point I was making. I was using the example of cremation to show that the Magisterium can decide to prohibit something that is not intrinsically evil. You are correct that circumstances or conditions might influence such a decision, but that does not challenge the point I was making. Even though cremation was never declared intrinsically evil, the 1917 Code of Canon Law forbad Catholics from carrying out the wishes of the deceased who wanted to be cremated (1917 Code canon 1203.2). The 1917 Code also denied ecclesiastical burials for those who deliberately chose cremation (canon 1240.5). With regard to capital punishment, I was simply noting that it’s possible for the Magisterium to prohibit something without declaring it intrinsically evil. Even Feser and Bessette acknowledge that natural law does not demand that “we MUST execute offenders who deserve death” (p. 79). The same holds true for Catholic tradition. I don’t see anything definitive in the tradition saying we MUST carry out the death penalty. Thus, there is nothing contrary to tradition to decide–in light of current conditions and certain principles–that the death penalty should not be allowed.

          • And to your point Professor Fastiggi, that is fine with us on the pro capital punishment side – that this is simply a prudential statement. And if this is true, there was no reason to change the Catechism to reflect this non event. The logic behind the prudential point is embarrassingly superficial, but at least we could all agree that capital punishment can be debated in good conscience among serious Catholics.

  13. Remember what the enlightened Humanitarians did in Benson’s Lord of the World? They abolished capital punishment; and then, years later, they impaled a child and paraded it through the streets. The sight terrified poor Mabel, who wanted to believe that mankind had finally grown up.

  14. Dear Dr. Anderson: Thank you for your comments. You seem to want a detailed and convincing argument for the revised teaching on the death penalty. Magisterial statements on the death penalty prior to John Paul II, however, were very brief and lacked any detailed argumentation. You also seem to have a minimalistic understanding of the submission owed to teachings of the Magisterium that require religious assent. You, of course, are not alone. Your attitude toward the revision of CCC 2267 seems similar to that of Prof. Steven B. Long of Ave Maria University (https://www.firstthings.com/article/2018/10/magisterial-irresponsibility) and some colleagues of mine. Prof. Matthew Shadle, however, has shown some real problems with Prof. Long’s understanding of prudence: https://catholicmoraltheology.com/the-death-penalty-is-abhorrent-a-response-to-critics-of-capital-punishment-must-end/.

    I don’t believe the revision of CCC 2267 is merely prudential. It involves a convergence of prudential considerations with the recognition that even those who commit serious crimes retain human dignity and inviolability. This teaching does not originate with Pope Francis. It has roots in Sacred Scripture and is clearly articulated by St. John Paul II in Evangelium Vitae, 9. But even if the revised teaching of CCC 2267 is essentially prudential, it still requires religious assent. In their 1998 Commentary on the Profession of Faith, Cardinal Ratzinger and Archbishop Bertone state that positions contrary to teachings in the prudential order can be qualified as “ rash or dangerous and therefore ‘tuto doceri non potest’ [cannot be safely taught]” (n. 10).

    Having said all this, I still understand why some Catholics will have difficulty in accepting the new teaching of the Church on capital punishment. Such Catholics, though, have “the duty to remain open to a deeper examination of the question” (CDF, Donum Vertitatis, 1990, n. 31.) They must pray and try to understand why the Church now teaches that the death penalty is inadmissible. They must form their consciences with this teaching in mind. As Pope Francis notes, the shepherds of the Church “have been called to form consciences, not to replace them” (Amoris Laetitia, 37). Let’s keep each other and Pope Francis in prayer.

    • “Magisterial statements on the death penalty prior to John Paul II, however, were very brief and lacked any detailed argumentation.”

      Actions speak louder than words. The Papal States had an executioner, and people were executed; and until 1969 the death penalty was legal in Vatican City. By their very actions in permitting these laws the various popes were making it clear that capital punishment is not intrinsically evil.

      “They must pray and try to understand why the Church now teaches that the death penalty is inadmissible. They must form their consciences with this teaching in mind. As Pope Francis notes, the shepherds of the Church “have been called to form consciences, not to replace them” (Amoris Laetitia, 37). Let’s keep each other and Pope Francis in prayer.”

      I will pray that Pope Francis will increase in charity to the point that he will cease sowing confusion by, among other things, failing in clarity.

    • Mr. Fastiggi, is nothing in Catholic social teaching settled?

      Can we really render as wrongheaded the Fathers consensus interpretation of Scripture?

      And can you help me answer the following question: Why would one follow a Faith which can be wrong for so long on such an important subject as life and death?

      • On whether or not there is unsettled Catholic social teaching, I suppose Fastiggi and other like minded would say the only settled Catholic teachings are ones that have been dogmatically defined in some sort of formal and obvious way. If this is the case, it leaves a great number of topics up for debate; too many to give me comfort that I am in the bosom of truth.

        I am desperate to find an answer to my question above: How could we have been so wrong for so long on so serious a thing?

        • Dear Jeremy,

          Thank you for your questions. I certainly believe that there are some doctrines of the Church that are infallible and definitive by virtue of the ordinary and universal mMgisterium. The perpetual virginity of Mary and the existence of angels and demons as real creatures of intellect and will are some examples. With regard to capital punishment, I do not believe there has ever been a definitive and infallible position set forth by the ordinary and universal Magisterium. It would take a long article to explain my position, but I’ve summarized my position below. If you still have difficulties, then feel free to write to Cardinal Ladaria, the Prefect of the Congregation for the Doctrine of the Faith.

          1) As Catholics we need to read the Old Testament in light of the New Testament. All of texts cited in the New Testament in support of the death penalty (e.g. Rom 13:4) are open to various interpretations. The Magisterium has never given a definitive interpretation on any of these texts in support of capital punishment.

          2) There was no definitive position of the Church on capital punishment in the early Patristic period. When the Bishop of Toulouse in 405 asked Pope Innocent I whether it’s permissible for civil authorities after baptism to administer torture (tormenta) or a capital sentence (capitalem … sententiam), Pope Innocent replied: “About these matters we read nothing definitive from the forefathers” (De his nihil legimus a majoribus definitum; PL 20, 499). This one sentence shows that there was not a DEFINITIVE teaching on capital punishment during the first four centuries of the Church.

          3. I know all the magisterial texts cited in support of capital punishment by Professor Feser et al. I don’t believe any of them fulfill the requirements of Lumen Gentium 25 regarding one position that must be definitively held by all the faithful. This would take a long time to explain, but my position is in harmony with the teaching of the present Roman Pontiff and the Congregation for the Doctrine of the Faith. The position of Professor Feser et al. is not.

          4. In n. 2 of his Aug. 1, 2018 letter to the bishops regarding the revised formulation of CCC 2267, Cardinal Ladaria explains why the death penalty was once considered acceptable but now is considered inadmissible. http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20180801_lettera-vescovi-penadimorte_en.html I believe Cardinal Ladaria’s explanation is correct.

          5. There are other practices once accepted by the Church that have now been judged to be unacceptable. Pope Innocent I in 405 permitted the use of judicial torture. Pope Nicholas I, however, in 866 told the Bulgarians that “neither divine nor human law” allows such torture (Denz.-H, 648). Pope Innocent IV (r. 1243–1254) permitted the use of torture in the Inquisition. Pope John Paul II, though, following Vatican II’s Gaudium et spes, 27, lists “physical and mental torture” among acts that are intrinsically evil (Veritatis splendor [1993] n. 80).

          6. There’s been a strong movement since the late 18th century against the death penalty. Following the arguments of Cesare Beccaria (1738–1794), the Italian state of Tuscany abolished capital punishment in 1786. The Italian philosopher, Blessed Antonio Rosmini (1797–1855) advocated for the eventual elimination of the death penalty in Christian societies (Rosmini, The Philosophy of Right, vol. 6, Rights in Civil Society, trans. D. Cleary and T. Watson (Durham: Rosmini House, 1966), fn.423 to no. 2508, pp. 375-376). It’s true that the death penalty was carried out in the Papal States. The fact that it was carried out does not mean it ought to have been carried out or that it should be carried out today. We cannot derive an “ought” from an “is” without falling into the naturalistic fallacy. In 1889—not long after the takeover of the Papal States in 1870—Italy abolished the death penalty. In 1926 the fascist dictator Benito Mussolini re-introduced it into Italy. The Lateran Treaty of 1929, which established Vatican City State, stated in article 8 that any attempt on the life of the Supreme Pontiff would be punishable with the same penalties as an attempt on the life of the King. In the actual text of this article, the Italian term for the death penalty (pena di morte) does not directly appear (see AAS 21 [1929] p. 213). Article 8 was only an indirect sanction of the death penalty which became obsolete in 1946 when the Italian monarchy ended. Since 1948 the death penalty has been illegal in Italy for civil crimes and since 1994 for military crimes during wartime. The example of Italy, which has deep Catholic roots, shows that there has been a growing movement against capital punishment by Catholics for over 200 years.

          7. Some Catholics like you argue that if the Church can change her teaching on capital punishment then all teachings are subject to change. Such an argument, however, falls into the fallacy of composition, which holds that what is true of the part is true of the whole. The fact that some positions of the Church are subject to change or development does not mean that all are. It’s up to the Magisterium, guided by the Holy Spirit, to discern which positions are subject to revision and which are not. I have great faith in the Holy Spirit’s guidance of the Magisterium.

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