In our book By
Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment,
Joseph Bessette and I assemble a mountain of evidence from scripture, the
Fathers and Doctors of the Church, two millennia of consistent papal teaching, and
Catholic moral theology, in defense of the conclusion that the Church has
taught irreformably that the death penalty can in principle be morally
licit. In a
follow-up article at Catholic
World Report, I have also explained the conditions under which the ordinary
Magisterium of the Church teaches infallibly, and have shown that the teaching
that capital punishment is not intrinsically immoral meets these
conditions. In our book, Bessette and I
also set out at length the social scientific arguments supporting the
conclusion that keeping the death penalty on the books for the most heinous
crimes is necessary for public safety.
One of the
frustrating things about Fastiggi’s series is that he leaves much of our
argumentation unaddressed. Furthermore,
many of the objections he does raise are ones I have already rebutted elsewhere
– including in my previous exchanges with him – yet he does not acknowledge,
much less answer, the responses I have already given. Yet Fastiggi’s series nevertheless gives the
false appearance of comprehensiveness, in part because of its sheer length, but
also because he will sometimes belabor trivial points. For example, as we will see below, he tries
vainly to read momentous significance into a passing allusion Pope Benedict XVI
makes to Genesis 9:6 in an obscure speech on a topic unrelated to capital
punishment. Meanwhile, major problems
for Fastiggi’s position go unaddressed. Many
readers of a site like Where Peter Is
will not only not have read our book, but are highly unlikely to follow up their
reading of Fastiggi’s articles with a look at our book to see if Fastiggi has
represented it accurately, or if he really has answered all the difficulties
facing the abolitionist case.
Yet another
problem is that Fastiggi does not always carefully distinguish the issue of
whether capital punishment is intrinsically wrong from the issue of whether it
is merely better in practice not to inflict it.
For example, he will often cite some critical remark that a Church Father
or pope makes about capital punishment, as if it were damaging to the case
Bessette and I make. But typically these
are passages we have already addressed in our book. And typically they are passages that would be
damaging to our position only if they asserted that capital punishment is
intrinsically wrong, and they do not in fact do that. When the issues are disambiguated and
formulated precisely, the passages in question do not have the force Fastiggi
seems to think they have. Problematic
ambiguities like this crop up again and again in Fastiggi’s discussion.
All of this
makes it harder for me to avoid a verbose response. So, as I did in part I of this series, I
apologize in advance for the length of what follows.
Scripture and the Church Fathers
As Fastiggi notes,
the Council of Trent teaches that “no one may dare to interpret the Scripture
in a way contrary to the unanimous consensus of the Fathers.” But as Bessette and I show at pp. 111-118 of
our book, the Fathers of the Church are unanimous in teaching that scripture
allows for capital punishment at least in principle. Fastiggi disputes this, writing:
This position, though, has been
rejected by Pope Francis in his October 3, 2020 encyclical, Fratelli Tutti, no.
265, when he correctly notes: “From the earliest centuries of the Church, some
were clearly opposed to capital punishment,” and he cites Lactantius (240–320),
Pope Nicholas I (c. 820–867), and Augustine (354–430) as examples.
But the
problem with Fastiggi’s argument here is that we need to distinguish (a) the
claim that capital punishment is wrong intrinsically,
or of its very nature, from (b) the claim that while it is not intrinsically wrong, it is still
better not to use it. As Bessette and I
acknowledge, some of the Fathers, including the ones Fastiggi mentions, do
endorse claim (b), though there are also many Fathers who reject it. But what is in question is whether any of the
Fathers endorse claim (a). And in fact,
as Bessette and I demonstrate in our book, none of them endorses that claim, and Pope Francis does not
say that they do. Indeed, even E.
Christian Brugger, who is not only opposed to capital punishment but would like
the Church to go as far as condemning it as intrinsically immoral, admits that
there is what he calls a “patristic consensus” on the thesis that capital
punishment is legitimate at least in principle, even among those who opposed
resorting to it in practice (Capital
Punishment and Roman Catholic Moral Tradition, p. 95).
In part
2 of his series, Fastiggi tries to make a big deal of the fact that
Pope Nicholas I was opposed to capital punishment – something Bessette and I
explicitly acknowledge in our book. But
Nicholas does not condemn it as intrinsically evil. Fastiggi also suggests that Tertullian,
Cyprian, and Lactantius are exceptions to the patristic consensus. But he ignores quotes Bessette and I give in our
book that show otherwise. For example,
in A Treatise on the Soul, Tertullian
says that “we do not account those to be violent deaths which justice awards,
that avenger of violence.” Lactantius,
in The Divine Institutes,
acknowledges that a man can be “justly condemned to [be] slain.” In Ad
Demetrianum, Cyprian indicates that if Christianity really were a crime,
the state would justly “put the man that confesses it to death.” These Fathers did indeed nevertheless oppose
the use of the death penalty in practice, but they do not teach that it is
intrinsically wrong. Not only Brugger,
but also James Megivern, another prominent Catholic opponent of capital
punishment, acknowledge that the stronger thesis cannot be attributed to these
three Fathers (Megivern, The Death
Penalty: A Historical and Theological Survey, pp. 22-26).
It
illustrates how desperate Fastiggi is to get around this difficulty that he
even alludes in passing to David Bentley Hart’s criticism
of By Man Shall His Blood Be Shed as
evidence that Bessette and I have somehow gotten the Fathers wrong (though Fastiggi
doesn’t explain how). The first problem here
is that it is not hard to show that Hart’s review was a dishonest hatchet job,
as I demonstrated when responding to it here
and here. The second problem is that it is very odd for
an orthodox Catholic like Fastiggi to look to Hart, of all people, for sound
exegesis. Hart is not Catholic and
rejects Catholic norms for interpreting scripture and the Fathers. Indeed, his view of scripture is so far from
a Catholic one that he is given to making
remarks like this:
Most of the Hebrew Bible is a
polytheistic gallimaufry, and YHVH is a figure in a shifting pantheon of elohim or deities… [In] most of the Old Testament he is of course presented
as quite evil: a blood-drenched, cruel, war-making, genocidal, irascible,
murderous, jealous storm-god. Neither he
nor his rival or king or father or equal or alter ego… is a good god. Each is a psychologically limited mythic
figure from a rich but violent ancient Near Eastern culture…
[The heretic] Marcion of Sinope…
exhibited far greater insight than modern fundamentalists… in that he recognized
that the god described in the Hebrew Bible – if taken in the mythic terms
provided there – is something of a monster and hence obviously not the
Christian God.
Hart is also
well-known for trying to reinterpret scripture so as to
make it compatible with universalism, which, from a Catholic point
of view, is a heresy. This is the exegete Fastiggi wants
Catholics to trust to interpret scripture and the Fathers on capital
punishment?
A third
problem is that Hart himself has
conceded that “it is perhaps easier for me as an Orthodox Christian
than it is for a Catholic to dismiss Feser’s arguments.” For some reason, Catholics who cite Hart
against me never quote this remark.
Genesis and the death penalty
Genesis 9:6 famously
states: “Whoever sheds the blood of man, by man shall his blood be shed; for
God made man in his own image.” This
passage has for millennia been understood by Catholic and Jewish commentators
as sanctioning the death penalty, and as Bessette and I show at pp. 99-101 of our
book, there is no plausible alternative way of reading it. In De
Laicis, Chapter 13, St. Robert Bellarmine considers and rejects the claim
that Genesis 9:6 is merely a prediction about what will happen to murderers, rather than a decree about what should happen to them. Among the points he makes is that such a
reinterpretation is contrary to the traditional Jewish understanding of the
passage. He points out that in the
Targums, the passage is paraphrased as: “Whoever sheds men’s blood before witnesses,
by sentence of a judge his blood
should be shed” (emphasis added).
Bellarmine concludes that Genesis 9:6 “must be taken as an order and a
precept.” Even Brugger admits that attempts
to reinterpret the passage are hard to defend, and concedes that it remains a
“problem” for his radical abolitionist position (Capital Punishment and Roman Catholic Moral Tradition, p. 73).
Yet Fastiggi
claims otherwise. He writes:
This Scripture… can actually be used
against the death penalty since the death penalty involves killing. In fact, Benedict XVI, in his 2012
Post-Synodal Exhortation, Ecclesia in Medio Oriente, n. 26
cites Genesis 9:6 as evidence that God forbids the killing of even those who
commit murder: “God wants life, not death. He forbids all killing, even of
those who kill (cf. Gen 4:15-16; 9:5-6; Ex 20:13).” In Fratelli Tutti, 270, Pope Francis cites Gen 9:6 in his section against the death
penalty for this Scripture stands as a warning to “those tempted to yield to
violence in any form.”
But this
line of argument is problematic in several ways. First, Pope Benedict’s exhortation was not
addressing the subject of capital punishment. As the reader can easily verify by looking
at the text, the context in which he made the remark in question was
a discussion of the idea of religious toleration. What the pope was saying is that the attempt
to coerce others into adopting one’s own religious point of view sometimes
results in violence and even killing, and that God does not approve of this. The pope was not even addressing the topic of
criminal justice, let alone the question of what sorts of punishments are
appropriate for which crimes.
Now, it is
standard methodology when interpreting papal texts to take such context into
account, and to be very cautious about extrapolating momentous implications
about a particular subject from papal remarks made in passing in a discourse
devoted to a completely different subject. Fastiggi violates this methodological principle
by insinuating that Benedict’s remark implies some radical reinterpretation of
Genesis 9:6 and, by implication, some revolutionary teaching vis-à-vis capital
punishment.
Second, it
is in any event highly misleading to imply, as Fastiggi does, that Benedict was
“cit[ing] Genesis 9:6 as evidence that God forbids the killing of even those
who commit murder.” For one thing, the
pope does not pinpoint Genesis 9:6 specifically and then make an explicit
comment about how to interpret it. Rather, he simply includes it in a string of scriptural
references that are implied to have some bearing – exactly what bearing, in the case of any of the individual Scriptural
passages, is not specified – on God’s will vis-à-vis killing. Benedict never explicitly makes, concerning
Genesis 9:6, the claim that Fastiggi attributes to him.
For another
thing, it is quite ridiculous on its face to suggest that Genesis 9:6 teaches
that “God forbids the killing of even those who commit murder.” Again, this passage has for millennia
consistently been understood by Catholic and Jewish exegetes to be teaching the
opposite. Even modern liberal exegetes
who have tried to reinterpret it have only ever claimed that the passage is neutral about capital punishment, and
they have had to strain credulity to go even that far (as, again, even Brugger
concedes). To suggest, as Fastiggi does,
that the passage is actually condemning
capital punishment, is to imply that Jewish and Christian exegetes, traditional
and liberal alike, have all been misreading it for millennia, and that its true
import was revealed only a few years ago in a passing and oblique reference in
a minor papal exhortation addressing an unrelated topic. With all due respect to Fastiggi, this
doesn’t pass the laugh test.
Nor is it
remotely plausible to attribute such an interpretation to Pope Benedict XVI, of all people. Benedict’s program was, famously, a
“hermeneutic of continuity” that eschewed rupture with traditional Catholic
teaching. It is absurd to propose that
he intended radically to subvert the traditional reading of Genesis 9:6, and
with it the Church’s perennial teaching that the death penalty is not
intrinsically immoral. It is doubly
absurd to suppose that he would do so in a way that was so extremely subtle and
inexplicit that no one even knew about it until Fastiggi drew our attention to
it. Moreover, while head of the CDF,
then-Cardinal Ratzinger stated in a
2004 memorandum that “it may still be permissible… to have recourse
to capital punishment” and that “there may be a legitimate diversity of opinion
even among Catholics about… applying the death penalty.” He could not have said such things if he
believed that Genesis 9:6 absolutely forbade the execution of murderers. Once again manifesting a degree of
intellectual honesty that too many Catholic opponents of capital punishment
lack, Brugger acknowledges in the second
edition of his book that in reality, Benedict XVI was “inclined to
accentuate the continuity that exists between the tradition and the moves of
his predecessor” vis-à-vis capital punishment, rather than to take John Paul
II’s teaching in a more radically abolitionist direction (p. xx).
To come to Fratelli Tutti, it is true that, in the
context of criticizing the death penalty, Pope Francis includes Genesis 9:6 in
a list of passages that he says warn of the consequences of violence. But he is not addressing, much less answering,
exegetical questions about the precise meaning of the passage. And Pope Francis’s habit of speaking with
imprecision should make any responsible theologian wary of drawing momentous
theological conclusions about some topic from remarks of his that are not
directly aimed at that topic.
Consider,
for example, Francis’s remark in Evangelii
Gaudium that “the first and the greatest of the commandments,
and the one that best identifies us as Christ’s disciples [is]: ‘This is my
commandment, that you love one another as I have loved you.’” What scripture actually says, of course, is:
When the Pharisees heard that he had
silenced the Sadducees, they gathered together, and one of them tested him by
asking, “Teacher, which commandment in the law is the greatest?” He said to
him, “You shall love the Lord, your God, with all your heart, with all your
soul, and with all your mind. This is
the greatest and the first commandment.” (Matthew 22: 34-38)
Should we
conclude that we have somehow been misunderstanding Matthew 22 for two
millennia, and that Francis has at last revealed what Christ actually taught is
the first and greatest commandment? That
would, of course, be absurd. Quite
obviously, the pope’s remark is simply mistaken, and he was not speaking
precisely. That would be enough of a
reason to refrain from drawing some revisionary theological conclusion from his
remark, but it is reinforced by the fact that he was not explicitly trying to
settle a matter of scriptural exegesis in the first place.
The same
thing is true of the remark in Fratelli
Tutti. The pope simply gathers
scriptural texts to illustrate the idea that violence has bad consequences. He does not say that his aim is to settle any
exegetical controversy about the proper interpretation of Genesis 9:6.
The Mosaic Law versus the Gospel?
Fastiggi
points out in part
1 of his series that the Old Testament permitted slavery and
polygamy, and that God even enabled the latter in the case of King David. Yet the Church has nevertheless rightly
forbidden these things. He suggests that
the case of capital punishment is similar.
Even though the Old Testament allowed it, the Church can and should
forbid it now in an absolute way.
But this is
a false analogy. The first problem with
it is that the Old Testament merely
permits, but does not require,
slavery and polygamy. The Israelites are
not told that they must take slaves or marry more than one woman. They are told at most only that if they do these things, then there are certain
conditions they must follow. By
contrast, the use of the death penalty is
positively commanded many times in the Old Testament. Moreover, these commands are not ad hoc in nature, directed to some
specific temporary purpose (as are divine directives to the Israelites to
destroy this or that pagan city, say).
Rather, the Mosaic Law makes the death penalty a standing and normal part of the everyday life of the nation of Israel.
Hence, if
capital punishment were intrinsically
or of its very nature“an attack on
the inviolability and dignity of the person,” we would be left with the
conclusion that scripture not only permitted,
but positively commanded the
Israelites to set up the very structure of their society in a manner that was
inherently and gravely contrary to the good of human beings. We would be left with the conclusion that
scripture thereby led the Israelites into grave moral error. But that is not possible given the Church’s
doctrine that scripture cannot teach
moral error.
Perhaps
Fastiggi would acknowledge that it was not wrong for the Israelites to make use
of capital punishment, but hold that it is nevertheless wrong to make use of it
under the New Covenant, given the higher moral demands of the Gospel. Now, one problem with this is that the New
Testament, too, explicitly affirms the legitimacy of the death penalty in some
cases. For example, as Bellarmine
pointed out, the deaths of Ananias and Sapphira in the Acts of the Apostles are
essentially divine executions carried out at the behest of St. Peter. In other words, the first pope not only approved of capital punishment, but inflicted
it himself. (I have discussed and
defended Bellarmine’s interpretation of this passage in an
another article.)
Romans 13:4
famously teaches that the governing authority “does not bear the sword in vain;
he is the servant of God to execute his wrath on the wrongdoer.” This has for two thousand years been
understood by Catholic theologians to affirm the legitimacy of capital
punishment. Church Fathers such as
Tertullian, Origen, Ambrose, and Augustine read it this way, as do Doctors of
the Church like Aquinas and Bellarmine.
Even Brugger admits that there was a patristic and medieval “consensus”
on this as the correct reading (Capital Punishment
and Roman Catholic Moral Tradition, p. 112).
Fastiggi
makes a passing reference to a speech from Pope Pius XII that alludes to Romans
13:4, and suggests that Pius somehow distanced himself from the traditional
interpretation. Fastiggi doesn’t explain
exactly how – nor could he have, since Pius says no such thing in that passage. Indeed, Pius isn’t even addressing the topic
of capital punishment at all in the passage.
And in fact, as is well known, when Pius XII did discuss capital
punishment, he clearly and firmly endorsed
it. (Fastiggi is likely borrowing here
from John Finnis, who has vainly tried to make hay out of this passage from
Pius XII. I refuted Finnis’s flimsy
arguments at length here and here.)
Bessette and
I address Romans 13:4 and other relevant New Testament passages at length at
pp. 103-111 of our book. I also address
attempts to reinterpret Romans 13:4 in my response to Hart, linked to
above. Fastiggi offers no response to
most of what we say.
But there is
yet another problem with Fastiggi’s suggestion that capital punishment, while
permissible in Old Testament times, is immoral given the higher demands of the
Gospel. The problem is that the Church
for two millennia has taught the contrary.
Indeed, on several occasions the
Magisterium directly addressed this thesis and explicitly rejected it. For example, in 405, a bishop inquired with Pope
St. Innocent I about whether civil authorities had to refrain from using
capital punishment after converting to Christianity. The pope answered in the negative, appealing
to Romans 13 and suggesting that to forbid capital punishment would “overturn
sound order… [and] go against the authority of the Lord.”
In response
to this, Fastiggi notes that Innocent begins his response to the bishop with
the remark that “about these matters we read nothing definitive from the
forefathers,” and suggests that this somehow poses a problem for those who
would appeal to Pope Innocent in defense of capital punishment. But there are two problems with Fastiggi’s
claim, whatever the significance of Innocent’s remark (which isn’t
obvious). First, Fastiggi leaves out
what Innocent immediately says next:
For they [the forefathers] had
remembered that these powers had been granted by God and that for the sake of
punishing harm-doers the sword had been allowed; in this way a minister of God,
an avenger, has been given. How therefore
would they criticize something which they see to have been granted through the
authority of God?
Needless to
say, that is pretty definitive. Innocent
says that the power of execution was granted to the state by God, and that precisely for that reason, the forefathers would
not criticize the death penalty. Second,
whatever the forefathers had to say, what matters is that Pope Innocent I’s remark is itself definitive. For whatever the forefathers thought, he, as pope, was being asked to make an
authoritative decision by a bishop who wasn’t sure what to think. And his response isn’t to waver, but on the
contrary, firmly to declare that to condemn capital punishment as inherently
wrong would be “to go against the authority of the Lord.”
But there is
further papal teaching along these lines.
For instance, in 1210, Pope Innocent III not only rejected the claim of
the Waldensian heretics that Christians could not resort to capital punishment,
but made repudiation of this thesis a condition of their reunion with the
Church. Fastiggi alleges that in
insisting that the death penalty could be inflicted “without mortal sin,” Pope
Innocent was merely making a point about the subjective culpability of public
officials rather than the moral character of the act of execution itself. But Bessette and I answered this sort of
dodge in our book (at pp. 124-125). The
statement that Innocent required the Waldensians to assent to reads, in full,
as follows:
We declare that the secular power can
without mortal sin impose a judgment of blood provided the punishment is carried
out not in hatred but with good judgment, not inconsiderately, but after mature
deliberation.
Furthermore,
in an earlier letter to a Waldensian leader, Pope Innocent wrote:
Let none of you presume to assert the
following: that the secular powercannot carry out a
judgment of blood without mortal sin.
This is an error because the law, not the judge, puts to death so long
as the punishment is imposed, not in hatred, nor rashly, but with deliberation.
Notice that
the pope is not saying merely that a person might not be culpable for sin when inflicting the death penalty – as if
inflicting it might still be intrinsically wrong, and it’s just that the
executioner doesn’t know any better, or acts under the influence of strong
emotion, and thus doesn’t meet the conditions for mortal sin. No, the pope says instead that even when acting
with “good judgment,” “mature deliberation,” “not in hatred, nor rashly,” etc.
one can in that case be blameless in inflicting the death penalty. And he says that “the law” itself requires
this, not the fallible judgment of the individual. Once again, even Brugger admits that those
who share his abolitionism do not have a strong case here, and that Pope
Innocent did indeed intend to teach that capital punishment itself is licit, not merely that those
who inflict it might lack subjective culpability (Capital Punishment and Roman Catholic Moral Tradition, p. 107).
Yet another
relevant papal statement is Pope Leo X’s condemnation of Luther’s thesis that the
execution of heretics is against the divine will. Then there is Pope St. Pius V’s promulgation
of the Roman Catechism, which was,
naturally, intended as a guide to living according to the principles of the
Gospel, and directed to the Church universally rather than merely addressing
some specific and contingent set of circumstances. This catechism enthusiastically endorses
capital punishment for murderers, saying that “the just use of this power, far
from involving the crime of murder, is an act of paramount obedience to this
Commandment which prohibits murder.” In
the twentieth century, Pope Pius XII taught that “it is reserved… to the public
authority to deprive the criminal of the benefit of life when already, by his
crime, he has deprived himself of the right to live.”
In our book,
Bessette and I discuss these and other relevant papal statements on the subject
of capital punishment at length. Now, if
capital punishment really were inherently
contrary to the demands of the Gospel, we would have to say that the Church has
for two millennia consistently and gravely misled the faithful on a matter of
fundamental moral importance. We would
have to say that when directly addressing the question of whether the Gospel
rules out capital punishment, popes Innocent I, Innocent III, and Leo X all got
it wrong. Indeed, we would have to say
that the heretics whom Innocent III and
Leo X were criticizing were right, and the popes were wrong.
This is Fastiggi’s idea of upholding the
authority of the Magisterium?! Which is
more likely to reinforce the Church’s credibility? The view that scripture and two millennia of
magisterial teaching were right, and that Pope Francis’s revision to the
Catechism is badly formulated and should be revisited in order to make it more
clearly consistent with the tradition?
Or the view that the Church has gotten things wrong for two millennia,
and that only Pope Francis has somehow finally seen the truth? To ask these questions is to answer them.
There is a
further irony here. Commenting on Pope
Innocent I’s affirmation of the legitimacy of the death penalty, Fastiggi
claims that Innocent also allowed “torture,” and suggests that this should lead
us to reject what he says about capital punishment. One problem with this is that Fastiggi does
not explain why the word he translates as “torture” should be understood to
refer to torments intended to break the will (which would be torture, and
immoral) as opposed to lesser corporal punishments (which would not be).
But leaving
that aside, it is odd that Fastiggi, in order to defend one pope (Francis)
against the charge of error, accuses another pope (Innocent) of error! If he is going to suggest that Innocent erred,
then how can he consistently object to those who suggest that Francis has
erred? Moreover, the cases are not
parallel, because there is a clear and consistent tradition, from scripture
through two thousand years of magisterial teaching, in favor of the legitimacy
in principle of capital punishment. But
there is no such tradition with respect to torture. Hence, if Innocent can be wrong about
torture, then, a fortiori, Francis
can be wrong about capital punishment.
Fastiggi thinks that his point about Pope Innocent helps his case, but
in fact it hurts his case.
The Ratzinger memorandum
During the
2004 U.S. presidential election, the question whether Catholic politicians who
support abortion or euthanasia should be denied Holy Communion became a hot
button issue. Some suggested that if these politicians were denied
Communion, then Catholic politicians who supported capital punishment or the
Iraq War should be denied it as well.
To clarify
the matter, Cardinal Ratzinger, who was then Prefect of the Congregation for
the Doctrine of the Faith, sent a memorandum titled “Worthiness
to Receive Holy Communion: General Principles” (which I briefly
referred to above) to then-Cardinal Theodore McCarrick, who was at the time the
archbishop of Washington, D.C. (McCarrick has, of course, since been
disgraced and defrocked, though that is irrelevant to the present
issue.) Ratzinger noted that the cases are not at all parallel,
writing:
Not all
moral issues have the same moral weight as abortion and
euthanasia. For example, if a Catholic were to be at odds with
the Holy Father on the application of capital punishment or on the decision to
wage war, he would not for that reason be considered unworthy to present
himself to receive Holy Communion. While the Church exhorts
civil authorities to seek peace, not war, and to exercise discretion and mercy
in imposing punishment on criminals, it may still be permissible to take up
arms to repel an aggressor or to have recourse to capital
punishment. There may be a legitimate diversity of opinion even
among Catholics about waging war and applying the death penalty, but not
however with regard to abortion and euthanasia.
Notice
several things about this teaching. As is well known, Pope St. John
Paul II held that the cases where capital punishment is necessary to protect
society are “very rare, if not practically nonexistent” (as the 1997 version of
the Catechism puts it). Indeed, the pope made even stronger
statements at other times, calling the death penalty “cruel and unnecessary”
and calling for its outright abolition. All the same, Ratzinger
acknowledged that “there may be a legitimate diversity of opinion even among
Catholics about… applying the death penalty,” and indeed that a Catholic in
good standing could even be “at odds with the Holy Father” on the
subject. He could not have said that if assent to the pope’s
position was obligatory. And notice that this is true even though
the pope’s prudential judgment concerned a matter of grave moral importance,
and was put forward publicly, repeatedly, and in stern moralistic terms.
Note also
the reference to “civil authorities,” and how war and recourse to capital punishment
can in some cases be permissible despite the fact that the Church urges such
authorities to seek peace and exercise mercy on criminals. The clear
implication is that it is ultimately civil authorities who
have the responsibility to make a prudential judgment about whether capital
punishment is necessary, just as they have the responsibility to determine
whether war is necessary.
Some have
claimed that
the memorandum merely reflects Cardinal Ratzinger’s personal opinion as a
private theologian. But this is clearly not the
case. Ratzinger was writing, not as a private theologian, but
precisely in his official capacity as Prefect for the Congregation of the
Doctrine of the Faith. And he was writing to a fellow bishop
precisely to clarify for him a matter of Church doctrine and discipline.
Furthermore,
the passage from the memo quoted above was incorporated almost verbatim
into a
USCCB document written by Archbishop William Levada (who would
later succeed Ratzinger as head of CDF). The purpose of this
document was precisely to clarify for Catholics the same issues Ratzinger aimed
to clarify in his memo. And the fact that a USCCB document
incorporates the passage in question obviously indicates that it has doctrinal
weight, and is not merely Ratzinger’s personal opinion. It is worth
adding that even Brugger acknowledges, in the second edition of his book, that
the memo was written by Ratzinger “as prefect of the CDF” (Capital
Punishment and Roman Catholic Moral Tradition, p. xxviii).
Now, keep in
mind that as head of CDF, Ratzinger’s job was to be Pope St. John Paul II’s
doctrinal spokesman. Hence he was an authoritative interpreter of
the pope’s teaching on the issue of capital punishment. Since he
explicitly said that there could be “a legitimate diversity of opinion” about
the matter even among faithful Catholics – and indeed, that faithful Catholics
could even be “at odds with” the pope on the matter – it follows that Pope John
Paul II’s position that capital punishment is no longer needed was not
something Catholics are obligated to agree with.
How is this
relevant to Pope Francis’s revision of the Catechism? The main
difference between John Paul’s teaching and Francis’s teaching is that the
former allowed that there may still be rare cases where capital punishment is
needed in order to protect society, whereas the latter denies that. Even
Francis’s appeal to the “dignity of the person” is not novel, because Pope John
Paul II made the same appeal when criticizing capital
punishment. For example, the 1997 edition of the Catechism says that
non-lethal means of dealing with offenders are preferable because they are
“more in conformity with the dignity of the human person.”
Now, John
Paul II’s view that the cases where capital punishment is still needed to
protect society are “very rare, if not practically nonexistent” was of its very
nature a prudential judgment concerning matters of social science, law,
criminology, etc. about which popes have no special expertise. For
that reason, as Cardinal Ratzinger made clear, Catholics were not obligated to
agree with that judgment. But Francis’s view that non-lethal means
are in every case sufficient to “ensure the due protection” of society is also,
of its very nature, a prudential judgment concerning matters of social science,
law, criminology, etc. about which popes have no special
expertise. So, how can Catholics be obligated to assent to the
latter view any more than they were obligated to assent to the
former? What the Ratzinger memorandum says about John Paul’s
teaching applies mutatis mutandis to Francis’s teaching.
In part
3 of his series, Fastiggi responds to those who argue that the
Ratzinger memorandum supports the view that papal opposition to capital
punishment amounts to a prudential judgement with which Catholics are not
obligated to agree. Fastiggi concedes
that “perhaps that argument could have been used prior to the 2018 revision” to
the Catechism. However, he says, “it
cannot be used now” because “that memorandum has been superseded by the change”
to the Catechism, along with the CDF’s explanation of the change. For one thing, says Fastiggi, “the revised
text of the [Catechism] articulates a moral judgment that is not merely
prudential.” For another thing, the
Ratzinger memorandum was in any case “never intended for publication, as
Cardinal Ladaria [then prefect of the CDF] has explained” but was “just a
private communication to some bishops.”
Fastiggi
supposes, then, that both the nature of the 2018 revision to the Catechism and
Cardinal Ladaria’s comments about the 2004 Ratzinger memorandum render that
memorandum moot and undermine any argument based on it. But both of these suppositions are
false.
First, it is
easy to show that the revision to the Catechism, no less than John Paul II’s
statements on capital punishment, does
reflect merely prudential considerations.
For the revised
text appeals not only to human dignity, but also to the assumption
that “more effective systems of detention have been developed, which ensure the
due protection of citizens but, at the same time, do not definitively deprive
the guilty of the possibility of redemption.”
Similarly, in his letter
to the bishops explaining the change to the Catechism, Cardinal Ladaria says
that part of the reason for the change has to do with “the development of more
efficacious detention systems that guarantee the due protection of citizens,” with
worries about “the defective selectivity of the criminal justice system and… the
possibility of judicial error,” with the judgment that “modern society
possesses more efficient detention systems, [so that] the death penalty becomes
unnecessary as protection for the life of innocent people,” and so on.
These are
statements concerning matters of
empirical fact about which churchmen have no more expertise than they have about
stamp collecting, electrical engineering, or gardening. They are inherently
prudential rather than doctrinal or moral in nature. And if these prudential judgments are
mistaken (and in our book, Bessette and I argue that they are mistaken), then
the justification for the conclusion that the death penalty ought entirely to
be abolished is thereby undermined.
It is also
worth noting that Ladaria’s letter urges civil authorities “to encourage the creation of conditions that
allow for the elimination of the death penalty where it is still in effect”
(emphasis added). That implies that it
may not in fact practically be possible to eliminate capital punishment everywhere. And it therefore implies in turn that
abolishing capital punishment is not
in fact an imperative that follows from moral principle alone, but rather
follows only when empirical
conditions allow for it. But whether
such conditions allow for it is, in the nature of the case, a prudential matter.
All things
considered, then, while the rhetoric
of the revision to the Catechism is certainly stronger than that of John Paul
II, the actual substance of the
teaching is essentially the same. Hence,
as I argued above, if the 2004 Ratzinger memorandum applied to John Paul II’s
version of the Catechism, then why would it not apply as well to Francis’s
version?
Nor,
contrary to what Fastiggi seems to think, do Cardinal Ladaria’s comments about
the Ratzinger memorandum show otherwise.
These comments were made in a
2021 letter to Archbishop Gomez concerning the USCCB’s intention of
drafting guidelines for dealing with “Catholics in public office who support
legislation allowing abortion, euthanasia, or other moral evils” yet want to
receive Holy Communion. Because the 2004
Ratzinger memorandum addressed precisely this issue, it comes up in the
exchange between Gomez and Ladaria. As
Fastiggi says, Ladaria does indeed note that the memorandum “was not intended
for publication” but “was a private communication addressed to the bishops”
(and Ladaria says “the bishops” – not,
contrary to what Fastiggi implies, “some bishops”).
Now,
contrary to what Fastiggi insinuates, the fact that Ratzinger’s memorandum was
originally intended to be private is irrelevant to the issue at hand. For one thing, the memorandum was still not
merely the private opinion of Cardinal Ratzinger. Again, it was an official act of the Prefect of the CDF, acting to
clarify for the U.S. bishops the
bearing of Catholic doctrine on a matter of current controversy. The fact that the memorandum was meant for
the eyes of the bishops rather than the general public doesn’t change that fact
or somehow magically render it irrelevant to understanding John Paul II’s teaching
on capital punishment.
Furthermore,
Fastiggi fails to mention two crucial aspects of Ladaria’s letter to Gomez. First, Ladaria does not say or in any way
imply that the 2004 memorandum has been superseded or is otherwise irrelevant. On the contrary, he tells Gomez that the
principles set out by Ratzinger in the memorandum “may be of assistance in the
preparation of the draft of your document”!
That is to say, far from telling Gomez and the U.S. bishops that they should
now ignore the 2004 memorandum, he explicitly says that they may make use of
it.
Second,
Ladaria in no way qualifies this advice in light of the 2018 revision to the
Catechism. Indeed, the topic of capital punishment is not mentioned at all in
Ladaria’s letter to Gomez. If Fastiggi
were correct, you would expect Ladaria to say that, in light of the revision,
the U.S. bishops should no longer use Ratzinger’s 2004 memorandum, or at least
no longer use the part of it that deals with capital punishment. But not only does Ladaria not say that, he
says that they may use the
memorandum, while saying nothing at all about the topic of capital punishment. That would be a remarkable omission if the
2004 memorandum’s teaching on capital punishment really were a dead letter in
light of the 2018 revision to the Catechism.
If anything,
then, Ladaria’s 2021 letter supports rather than undermines the argument I’ve
been defending. Once again, what
Fastiggi supposes helps his case
actually hurts his case.
Odds and ends
As I have
said, in a
Catholic World Report article
from some years back, I argue that the ordinary Magisterium of the Church has
taught infallibly that capital
punishment is not intrinsically wrong.
Fastiggi does not answer those arguments, but in support of the claim
that this has not been infallibly taught, he directs his readers to two
articles by Brugger at Public Discourse,
here and here. But I answered Brugger in my own series of
articles at Public Discourse, here
and here. Fastiggi also commends to his readers two
articles by Finnis, here and here. But I answered Finnis too, here
and here. And Fastiggi calls his readers’ attention to
two Catholic World Report articles
wherein he has criticized my views, here
and here. But I have answered those articles as well, here
and here. I have also criticized Fastiggi’s views in
two further articles, here
and here. I urge Fastiggi’s readers to remember that
there are two sides to every debate, and that they should read and consider what I have actually said, and not only
what Fastiggi, Brugger, Finnis, Hart, et al. claim I have said.
In part 4 of his series, Fastiggi asks, rhetorically: “Is fidelity to the death penalty more important than fidelity to the Magisterium?” But this too attacks a straw man, because nobody claims in the first place that fidelity to the death penalty is more important than fidelity to the Magisterium. In reality, the critics of the revision to the Catechism are no less loyal to the Magisterium than Fastiggi is. But they insist that loyalty to the Magisterium involves more than loyalty to Pope Francis alone (even if it does, of course, involve that) – it involves loyalty to the consistent teaching of scripture, the Fathers and Doctors of the Church, and all previous popes. And they insist too that loyalty to the Magisterium is perfectly consistent with the respectful criticism of problematic magisterial statements that the Magisterium itself acknowledges to be permissible in Donum Veritatis. Fastiggi has every right to criticize the views of the critics of the revision. But he has no right to pretend to be “more loyal than thou.”