This essay is part of our collection on the legitimacy of capital punishment. See the full collection here.
The Catholic Church has for two millennia taught that capital punishment can be legitimate in principle, even if some Catholic churchmen, including Pope St. John Paul II, have taken the view that it is rarely if ever advisable in practice. In our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, Joseph Bessette and I argue that this teaching cannot be changed. To change it would be to contradict the clear and consistent teaching of scripture, the Fathers and Doctors of the Church, and the popes, and no pope has the authority to do that. E. Christian Brugger disagrees, and has responded to our book in two recent Public Discourse essays. In Part I of this essay, I replied to what Brugger says about the scriptural evidence. In this second part, I reply to what he says about the teaching of the popes.
As I noted in my previous essay, Pope St. Innocent I 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 the first edition of his book Capital Punishment and Roman Catholic Moral Tradition, 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.” In short, the pope was teaching that affirmation of the legitimacy of capital punishment is a matter of Catholic orthodoxy, and is grounded in scripture, which the Church teaches is divinely inspired and thus free of moral error.
Another important papal statement concerning capital punishment is Pope Innocent III’s requirement of the Waldensian heretics that they affirm the legitimacy of capital punishment as a condition of their reentry to the Church. This pope too made it clear that the legitimacy of the death penalty is a binding matter of Catholic orthodoxy and not a mere theological opinion with which one is free to disagree.
Brugger tries to minimize the significance of Innocent III’s statement by saying that it is not an “infallible proclamation,” because it “was published in a personal letter to the group’s leader and not in a papal bull to the universal Church.”
There are several problems with this response. First, Brugger ignores the clear papal affirmations of capital punishment that were directed to the universal Church. The legitimacy in principle of the death penalty is explicitly taught both in the Roman Catechism promulgated by Pope St. Pius V, and in the Catechism of the Catholic Church promulgated by Pope St. John Paul II.
Second, the fact that the Church holds that scripture cannot teach moral error, and that scripture affirms the legitimacy of capital punishment (again, Brugger has failed to show otherwise), by itself suffices to show that the legitimacy of capital punishment in principle must be regarded by any Catholic as an infallible teaching. That is simply the end of the story, or should be.
Third, as canon lawyer Edward Peters and theologian John Joy have recently emphasized in connection with the debate over capital punishment, many propositions that are longstanding components of the ordinary and universal magisterium of the Church can have an infallible status simply by virtue of being part of that magisterium. An extraordinary act by a pope or the college of bishops is not necessary. Now, the legitimacy of capital punishment, I submit (and Peters and Joy agree), meets this criterion. In order to doubt this, you have to believe that the Church has for 2000 years both been systematically misinterpreting scripture and also teaching grave moral error. (If Brugger is right, the Church has for all that time essentially been endorsing a species of murder!). How Brugger would reconcile such a claim with the moral and theological credibility of the Church, I have no idea.
Brugger claims in his article that the conditions for an infallible teaching of the ordinary magisterium of the Church set out in the Vatican II document Lumen Gentium have not been met. But Joe Bessette and I responded to this line of argument at length in our book, raising objections that—once again—Brugger largely ignores rather than answers. Among other problems, Brugger confuses sufficient conditions for infallibility with necessary conditions. The conditions he cites are one way a doctrine might be taught infallibly, but not the only way.
Fourth, as Brugger well knows, even doctrines that are not taught infallibly are still ordinarily binding on the faithful. According to Donum Veritatis, a magisterial document setting out the obligations of theologians, a theologian can withhold assent to a non-infallible teaching only if certain very stringent requirements are met. As Joe Bessette and I demonstrate at length in our book, Brugger has come nowhere close to meeting those requirements. Accordingly, he simply has no right to dissent from the teaching of Pope St. Innocent I, Pope Innocent III, Pope St. Pius V, Pope St. John Paul II, and all the other popes who have affirmed the legitimacy in principle of capital punishment, such as Pope Leo X, Pope St. Pius X, and Pope Pius XII.
Pope St. John Paul II
Brugger breathlessly claims revolutionary significance for the fact that in the 1997 version of the Catechism promulgated by John Paul II, the topic of capital punishment is addressed in a subsection titled “Legitimate defense.” The Catechism also urges that execution be limited to cases where the offender poses a danger to society. All of this shows, Brugger claims, that John Paul II implicitly taught that when legitimate, capital punishment is strictly speaking not really a kind of punishment at all, but rather merely a means of defending society against the physical threat posed by an aggressor. This opens the door, he claims, to the possibility of a condemnation, as intrinsically wrong, of the use of execution as a kind of punishment.
But the inference is fallacious, and once again Brugger simply ignores detailed criticisms that Bessette and I have already made of his line of argument in our book. Here, briefly, are some of the problems.
First, Brugger’s reading of the text is completely arbitrary. The treatment of capital punishment is in paragraph 2267. The issue of “legitimate defense,” which Brugger claims provides such momentous context, is raised in paragraph 2265, two paragraphs before. And what comes in between, in paragraph 2266, the paragraph immediately before the discussion of the death penalty? A general discussion of punishment! It is quite ridiculous, then, to pretend that the context shows that the Catechism teaches that the death penalty is really a matter of self-defense rather than punishment. If section headings, the placement of paragraphs, and other matters of context are as consequential as Brugger supposes, then this context actually undermines Brugger’s point rather than reinforces it. For the immediate context of the discussion of the death penalty is, again, a general treatment of punishment rather than of defense.
Second, the Catechism in fact still explicitly characterizes execution precisely as a “penalty,” rather than merely as defense. And in the paragraph immediately preceding, the Catechism not only discusses punishment in general, but explicitly reaffirms the traditional teaching that in general “punishment has the primary aim of redressing the disorder introduced by the offense”—that is to say, of securing retributive justice. The logical implication is that the death penalty too secures retributive justice, even if it also serves the function of defense.
This brings us to a third problem, which is that Brugger makes the entirely unwarranted assumption that if the death penalty serves the function of defending society, then it cannot also be a matter of retributive justice. That simply doesn’t follow, and it wouldn’t follow even if we interpreted the Catechism to be absolutely forbidding capital punishment except in cases where it is necessary for self-defense (as opposed to asserting a mere prudential judgment). For all that would show is that securing retributive justice is not a sufficient condition for using capital punishment. It would not show that it is not a necessary condition, one that still has to be part of the story even if it is not the whole story.
In this connection, it is worth noting that the Compendium of the Catechism of the Catholic Church promulgated by Pope Benedict XVI, when it reiterates the teaching of the 1997 Catechism, places the discussion of the death penalty squarely in the context of a section (469) explicitly devoted to the topic of punishment. Whatever “direction” Brugger imagined he saw John Paul II’s teaching leading the Church in vis-à-vis capital punishment, Benedict evidently did not see it.
Even while John Paul was still alive, then-Cardinal Ratzinger (who would later become Pope Benedict) stated in 2004 that “it may still be permissible to . . . have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about . . . applying the death penalty.” Not only does he still call execution a “punishment” and a “penalty”—contrary to the “direction” Brugger insists John Paul was leading the Church—but he even says that capital punishment can be permissible and something Catholics can disagree about. This is the opposite of what one would expect if John Paul had actually intended Brugger’s imagined massive doctrinal revolution.
Indeed, in the 2014 second edition of his book, Brugger admitted that he “doubts” that Pope Benedict would agree with the extreme anti-capital punishment position Brugger thinks the Church should adopt.
A further problem is that Brugger’s interpretation is, even apart from all these other problems, simply incoherent. Brugger thinks that the Catechism at least implicitly endorses his personal view that intentional killing is always and intrinsically wrong. He thinks that it allows execution only as a means of self-defense, and that this doesn’t count as intentional killing because in self-defense the death of the attacker is not intended but just foreseen as a byproduct of the act of self-defense, and justified by the principle of double effect.
The trouble is that the execution of someone on death row is simply not at all like the killing in self-defense that is justified by double effect. When, for example, an attacker is about to shoot or stab you, you can shoot him first if your intention is simply to stop the attack rather than to kill him, even if you know he will probably die. But in an execution, the one killed is not an immediate threat at all—he is helpless at that moment—and your intention is precisely to kill him. Even if your ultimate aim is to make sure he doesn’t pose a danger in the future, you are still intending his death as a means of ensuring this.
So, since even Brugger admits that the Catechism allows for execution, then either the Catechism is, contrary to what Brugger thinks, teaching that it can indeed be legitimate in some cases intentionally to kill someone; or it is contradicting itself, i.e. both teaching and at the same time implicitly denying that it can be legitimate intentionally to kill someone. If Brugger takes the first option, then he has to admit that the Catechism doesn’t really support his position after all. If he takes the second option, then he has to claim that the Catechism, and by extension Pope St. John Paul II, were committed to a self-contradictory position. Why Brugger would think a self-contradictory position a good basis for a reversal of 2000 years of teaching, I have no idea.
Finally, it cannot be emphasized too strongly that John Paul II himself never actually explicitly took the position Brugger thinks he can tease out of the late pope’s teaching. What Brugger thinks is so momentous, so revolutionary that it justifies overturning 2000 years of Catholic doctrine, is a theoretical construct that Brugger has come up with, rather than anything the Church has actually taught. And it is not only a construct that John Paul II himself never actually endorsed, but one that every pope prior to John Paul II would have rejected, and one that (as Brugger appears to concede) even John Paul II’s successor Benedict XVI would not agree with.
How on earth Brugger thinks this can justify him, or anyone else, in dissenting from the 2000-year tradition of the Church on capital punishment, I, again, have no idea.
As I have said, Joe Bessette and I have answered Brugger’s arguments at length and in detail (in over twenty pages of text) in our book. What I’ve said here only scratches the surface, and Brugger fails to respond at all to much of what we say there. Interested readers ought to consider our entire critique when evaluating the radical position Brugger would have Catholics adopt. If Brugger is right, then the Church has been teaching grave moral error and badly misunderstanding scripture for two millennia. Nothing less than her very credibility is at stake.
Edward Feser is Associate Professor of Philosophy at Pasadena City College.