This essay is part of our collection on the legitimacy of capital punishment. See the full collection here.
The Catholic Church has always taught that capital punishment can be legitimate under certain circumstances. Scripture, the Fathers and Doctors of the Church, and every pope who has commented on the topic up to Benedict XVI have all clearly and repeatedly affirmed this teaching. Even Pope St. John Paul II, who held that it is better rarely if ever to use the death penalty in practice, nevertheless explicitly reaffirmed that it can be legitimate in principle.
Could the Church reverse this doctrine, consistent with her claim to preserve intact the deposit of faith? Could she teach that capital punishment is wrong even in principle—that is to say, always and intrinsically wrong? 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 the tradition showing that this is not possible. Even a pope who tried to reverse the traditional teaching would simply be committing a doctrinal error (something that is possible when a pope is not speaking ex cathedra, though it is extremely rare).
Theologian E. Christian Brugger thinks it is possible, and defends this claim in his 2003 book Capital Punishment and Roman Catholic Moral Tradition. Philosopher Christopher Tollefsen has tried to give a natural law philosophical justification for such a reversal of traditional teaching in a series of Public Discourse articles over the years.
Joe Bessette and I refute Brugger’s and Tollefsen’s arguments at length in our own book, but in a recent series of essays at Public Discourse (here, here, here, and here), Brugger and Tollefsen have offered a response. What follows is a reply to their reply. In this essay, I respond to Brugger’s claims about the scriptural texts traditionally understood to support capital punishment. In tomorrow’s essay, I will address what Brugger has to say about the teaching of the popes, including Pope St. John Paul II. In a third and final essay, I will respond to Tollefsen.
(Some readers will no doubt be wondering how Pope Francis’s recent comments on the subject factor in. I have addressed that issue in a recent pair of articles at Catholic Herald and Catholic World Report.)
The Old Testament
The Catholic Church teaches that scripture is divinely inspired and thus cannot teach moral error. She also teaches, in the words of the First Vatican Council, that “it is not permissible for anyone to interpret Holy Scripture in a sense contrary to” the meaning “which Holy mother Church held and holds” or which is “against the unanimous consent of the fathers.” Now, scripture clearly teaches that capital punishment is sometimes morally permissible, and the Church historically, including the Fathers of the Church unanimously, have always interpreted scripture as teaching this. Taken together, these points logically entail that the Church must regard the legitimacy in principle of capital punishment as a divinely inspired and thus infallible teaching. She cannot possibly reverse it consistent with her claim to preserve divine revelation intact.
If there were any doubts that this conclusion is inescapable, the weakness of Brugger’s attempt to escape it should dispel them. Consider first his proposed way of dealing with the numerous texts from Exodus, Leviticus, Deuteronomy, and Numbers in which God, through Moses, commands capital punishment for various offenses. Brugger suggests that this was comparable to Moses’s permitting of divorce, a practice that Catholic theology regards as contrary to natural law and no longer permitted. Capital punishment too, Brugger proposes, is an intrinsically evil practice that God merely permitted temporarily.
The first problem with this is that the alleged parallel between divorce and capital punishment is bogus. In the relevant texts in the Pentateuch, God does not positively command the Israelites to divorce. Nor does he say that divorce is a good thing. He simply tolerates their divorcing, and establishes some rules they have to follow if they are going to do it. By contrast, he does positively command the Israelites to execute criminals, and for a large variety of offenses.
More than that, he does so with great vehemence and with an emphasis on the good effects of capital punishment. For example, when commanding the death penalty for various offenses, God says, through Moses:
Show no pity; you shall purge the guilt of innocent blood from Israel, so that it may go well with you. (Deuteronomy 19: 13).
No expiation can be made for the land, for the blood that is shed in it, except by the blood of the one who shed it. (Numbers 35:33)
So you shall purge the evil from your midst; and all Israel will hear, and be afraid. (Deuteronomy 21:20)
It is ridiculous to suggest that in emphasizing the salutary fear that potential evildoers will feel, the expiation for sin that death will bring, the purging of evil from the community, the need to resist pity, and so on, God is merely reluctantly tolerating something he regards as intrinsically evil!
A second problem with Brugger’s proposal is that the suggestion that God sometimes commands people to do what is intrinsically evil is, frankly, blasphemous. But even apart from that, the notion of an act that is both commanded by God and is also intrinsically evil simply makes no sense. It’s like talking about a round square. The statement “X is commanded by God” entails “X is morally permissible.” But the statement “X is intrinsically evil” entails “X is never morally permissible.” Hence the statement “X is commanded by God and X is intrinsically evil” entails “X is morally permissible and X is never morally permissible”—which is self-contradictory.
Brugger implicitly concedes this—apparently without seeing that he has done so—when he writes that “if God did inspire Moses to command the people of Israel to kill malefactors, then killing malefactors within that framework may not have been illicit” (emphasis in the original). But if the death penalty was not illicit even just within that framework, then it follows logically that it is not always and intrinsically wrong, contrary to Brugger’s main thesis.
A third problem is that there is no way to reconcile Brugger’s proposal with the Church’s doctrine that scripture cannot teach moral error. For if the death penalty is intrinsically evil, and scripture positively commanded the Israelites to inflict that penalty, then it follows that scripture led the Israelites into moral error. Whether the relevant commands from the Mosaic Law apply today is completely irrelevant to the point. If scripture taught even just the Israelites moral error, then we can have no confidence that anything else in it might not contain error.
A fourth problem is that whatever one says about the Mosaic Law, there are also scriptural passages that sanction capital punishment both prior to the Mosaic Law (in Genesis 9:6) and after that law was no longer in force (for example, in Romans 13:4).
Now, in his book, Brugger admitted that Genesis 9:6 (“Whoever sheds the blood of man, by man shall his blood be shed”) poses a “problem” for his position that he could not resolve and that had to be “left standing” in the book. He conceded there that “the passage . . . seems to affirm that human agents have a mediating role in the justice of God which includes . . . in some cases, the infliction of death.”
Perhaps realizing the damage this does to his cause, Brugger has in his latest essay decided to do some backpedaling. He now endorses James Megivern’s proposed reinterpretation of the passage as a mere proverb—despite the fact that Joe Bessette and I refuted Megivern’s interpretation in our book, with objections that Brugger ignores rather than answers!
According to Megivern’s reading, the passage is not sanctioning capital punishment, but merely notes that murderers will as a matter of fact tend to be killed themselves. As we noted in the book, one problem with this interpretation is that it simply does not fit the larger context of the passage. God does not merely say that murderers will happen to be killed. He says, in the line immediately preceding Genesis 9:6, “I will surely require a reckoning” and “I will require the life of man.” These words are immediately preceded by another command (“You shall not eat flesh with its life, that is, its blood”) and followed by yet another (“And you, be fruitful and multiply, bring forth abundantly on the earth and multiply in it”). The overall context is one of God issuing instructions, not mouthing proverbs.
Moreover, even if the passage were a proverb, that would by no means show that it is not a sanction of capital punishment. In scripture, proverbs are often used precisely to instruct us to do certain things. For example, when scripture says “Happy is the man who finds wisdom” (Proverbs 3:13), it is not merely observing that wisdom will tend to lead to happiness. It is commending wisdom as something to be pursued, and regarding its connection with happiness as something fitting. Similarly, for all Megivern or Brugger has shown, Genesis 9:6 would, even if interpreted as a proverb, be saying that execution is not only the typical fate of murderers, but a fitting one.
It is also irrelevant (contra Brugger) that the passage does not make reference to state authorities, possible exceptions, etc. When Christ commands his followers to “give to him who begs from you” (Matthew 5:42), it would be ridiculous to argue that this is not really to be understood as a command to give alms, on the grounds that the passage does not distinguish between governmental assistance and private charity, between the truly needy and those who might take advantage of us, etc. Obviously, the passage is teaching the general principle that we should aid the needy, even if it doesn’t address every question that might arise about when and how, specifically, we should carry out this obligation. Similarly, Genesis 9:6 is teaching the general principle that capital punishment is fitting for murderers, even though it doesn’t answer every specific question we might have about how to apply that principle.
It is also important to emphasize that in both the Jewish and Catholic traditions, Genesis 9:6 has for millennia been understood precisely as a sanction of capital punishment. Megivern’s and Brugger’s novel reinterpretation is ad hoc, motivated by the desire to find a way around what Brugger had earlier admitted is a “problem” facing his position that capital punishment is intrinsically immoral.
The New Testament and Church Fathers
A similar problem faces Brugger’s treatment of Romans 13:4, which says that the state “does not bear the sword in vain” and is “the servant of God to execute wrath on the wrongdoer.” This too has for millennia been understood by the Church as an affirmation of the legitimacy of capital punishment. And here too Brugger reiterates an ad hoc re-interpretation that Joe and I have already refuted at length in our book, with objections that Brugger again largely ignores rather than answers.
In his book, Brugger admitted not only that there was a “consensus” among the Fathers of the Church on the right of the state to inflict capital punishment but also that “the appeal to Scripture, particularly Romans 13, as a ground for this right” was part of the basis for this consensus (emphasis added). But that means that the legitimacy of capital punishment as divinely revealed in scripture has, as the First Vatican Council puts it, “the unanimous consent of the fathers” behind it, from which it “is not permissible for anyone” to dissent.
Apparently once again realizing the grave difficulty he has put his position in with these admissions, Brugger once again backpedals in this latest article. He writes:
As to capital punishment, relatively few fathers comment directly on its morality. Those who do affirm the right of civil authority to carry it out. Can this be considered a “unanimous consent of the fathers”? I think not.
One problem with this is that it gives a highly misleading impression of the extent of the patristic evidence. By Brugger’s own admission (in his book), the Fathers who comment on and either explicitly or implicitly affirm the legitimacy in principle of capital punishment (even if not always the practice of it) include Justin Martyr, Irenaeus, Athenagoras of Athens, Tertullian, Lactantius, Clement of Alexandria, Origen, Cyprian of Carthage, Eusebius, John Chrysostom, Gregory of Nazianzus, Ephraem of Syria, Hilary, Ambrose, Augustine, Leo the Great, and Jerome. That is not a short list, and it includes some very big names. It is not for nothing that Brugger himself referred in his book to a “Patristic Consensus” on the legitimacy of capital punishment (to which he devotes a whole chapter). Brugger even went so far in the book as to argue against those who would deny such a consensus. It is understandable, but not really fair, that he now wants to minimize the significance of that consensus.
Another problem is that Brugger’s remark implies an indefensible interpretation of the First Vatican Council’s teaching about the unanimous consent of the Fathers. He insinuates that there is no real unanimity in this case, because not every one of the Fathers comments on the subject of capital punishment. But this is an absurd standard, which would make the Council’s teaching inapplicable to any theological issue on which even one Father has refrained from commenting. That is simply never how the Council’s instruction has been understood in Catholic theology. On the contrary, as the Catholic Encyclopedia notes, the needed consensus requires only that:
There must be a moral unanimity in their interpretation. This unanimity is not destroyed by the silence of some of the foremost Fathers, and is sufficiently guaranteed by the consentient voice of the principal patristic writers living at any critical period, or by the agreement of commentators living at various times. (Emphasis added)
What matters is not whether every single Father commented on capital punishment, but rather that a variety of Fathers did and that they converged on the same judgment. And it cannot be emphasized too strongly that this includes those among the Fathers who strongly recommended against using capital punishment in practice. Even they acknowledged that the death penalty is legitimate in principle. It is simply preposterous to pretend that even these Fathers—who were much closer in time to the Apostles than we are, and had every motivation to try to find a more absolute condemnation of capital punishment in scripture if they could—nevertheless understood scripture less well than a contemporary writer like Brugger.
It is also important to note that, during this crucial Patristic period, a pope also affirmed the legitimacy of capital punishment and connected it with the relevant passage from Romans. This was Pope St. Innocent I, who taught that the state’s right to execute offenders has been “granted through the authority of God,” and that to condemn capital punishment in an absolute way would be to “go against the authority of the Lord.” As Brugger himself acknowledged in his book, Pope Innocent was here simply “repeat[ing] the customary interpretation of Romans 13” (emphasis added). Brugger even admits that Innocent was teaching this as something “to be definitively held.”
This naturally brings us to the teaching of the popes on the subject of capital punishment, including Pope St. John Paul II. I will address that topic in tomorrow’s essay.
Edward Feser is Associate Professor of Philosophy at Pasadena City College.