The August 2018 revision to the Catechism of the Catholic Church stating that capital punishment is “inadmissible” set off a round of debate and discussion—about the morality of intentional killing, the justification of punishment, the development of doctrine, and the scope of infallibility.
Replying here at Public Discourse to my own Public Discourse essays (here and here), Edward Feser makes nine points on these and related issues. Though they all fail, his underlying concern is entirely sound: Christian doctrine, warranted as it is by natural reason and by the revelation completed with the Apostles, must not be subordinated to secular opinion and sentiment under a pretext of authentic development. His essay ends with that vital point, but I shall begin commenting on it after the first two sections of this response, which will also clarify several matters my essays left in shadow.
This essay discusses the fundamental change that the Catechism articulated under John Paul II, the question of whether the Church could have been wrong about capital punishment for so long, whether the permissibility of capital punishment was ever infallibly taught, whether the Old Testament or the New Testament teach that capital punishment is inherently permissible, whether criminals forfeit a right to life, and whether for certain crimes death is not only deserved but the only proportionate punishment. I begin, though, with a misfire from Feser on Pius XII.
Feser’s points fail because they mishandle the two essays as much as his sixth point mishandles Pius XII’s 1957 address to Italian Catholic lawyers involved in care of prisoners. Beginning a new section headed “Aid to those who are undergoing punishment,” the address reads (in Italian, 49 AAS at 408):
Your Association bears the name—expressive of its intentions—“Brothers of Christian Aid” and “Friends of the imprisoned.” But it is those convicted and condemned who need assistance, not simply those imprisoned. Penal justice of the past, and of the present to a certain extent, and—if it’s true that in many matters history teaches us to foresee what will happen in future—tomorrow’s penal justice, too, know(s) punishments consisting of physical tortures, of mutilations, and of death and capital executions of various forms.
I italicize the words omitted from the quotation that Feser incorporates in his reply by referencing his book; it omits also the first two sentences and the heading. Quite obviously, the whole sentence partially quoted by Feser does not concern either the morality of justice or what forms of punishment are morally justified or required. Instead, Pius XII was reminding the Association’s charitable care-givers of the range of punishments a justice-system (a legal and law-enforcement system, “a court of justice”) is capable of imposing, rightly or wrongly, in dealing with convicted persons who, after being sentenced, will need (and should be given) charitable care of the kind provided by those he was addressing.
But here’s how Feser’s reply renders the passage, after asserting that it “explicitly endorsed capital punishment” and “explicitly said it can be legitimate:”
As Bessette and I note in our book, Pius also went on in a 1957 address explicitly to say that the penal justice of the future will still require “capital punishment in various forms.”
“…will still require”! The impossibility of Feser’s interpretation is self-evident, provided one reads the passage itself instead of what Feser has quoted from it. While watering down tormenti fisici to “punishments involving physical pain,” his version altogether omits mutilations (mutilazioni). Pius XII was not asserting, or even hinting, that having a just legal system requires or licenses torture, or mutilations.
Feser’s other eight points subject my essays to similar mistreatment and incomprehension.
“The Catechism as … John Paul II Left It”
Does the Catechism teach that acting with the intent to kill a human being is inherently wrong? I argued that, beginning with the 1992 version and even more obviously (though not yet entirely coherently) in the 1997 version, it does. Feser says it does not, or if it does it contradicts itself and its new teaching is of no weight. He says my reading is “casual,” “implausible” and “falls apart entirely.” Feser explains:
Finnis himself admits that the passage is “confusingly worded” and that what he attributes to it is there only “implicitly.” Furthermore, in order to tease out the proposition in question, Finnis appeals to some complicated exegesis of Aquinas that requires partially accepting and partially rejecting Aquinasʼs position on the ethics of killing. And yet despite these complications, Finnis casually asserts that the proposition in question is “unambiguously” there in the Catechism. This is, to say the least, an overstatement. The most that Finnis is entitled to say is that read out of context, the passage might arguably be interpreted the way he interprets it. [I add the italics, here and elsewhere.]
Which passage? Which proposition? Feser’s essay uses the phrase “the passage” six times, always referring to CCC 2263, the only section it ever mentions. But nowhere do I rely upon 2263 alone. My discussion is always of the passage constituted by 2263-65, or by 2263-69, or by 2263-69 and 2307. Feser has mislocated everything that matters, including my words “implicitly” and “unambiguously,” and the proposition to which they relate. Here’s where my first essay put those words; the quotation is longish (and I now number three bits of it for consideration below, and emphasize using bold and italics key words and phrase), but this quotation from the first of my essays will supply everything needed to get to the heart of the whole debate about John Paul II’s Catechism:
The Real Development of Doctrine: CCC 2263-5 and 2307
The Catechismʼs section on “legitimate defense,” the section that ends with capital punishment, begins with no. 2263. [i] This opens with a confusingly worded sentence dealing both with “the murder of the innocent” and “intentional killing.” The sentenceʼs meaning and thesis is then made clear by the sentence following it, a quotation from Aquinasʼs famous statement that private personsʼ defense of themselves can “have a double effect: the preservation of oneself and the killing of the aggressor . . . the one is intended, the other is not.” Aquinas makes it explicitly clear, and CCC 2263 takes for granted, that such self-defense is morally permissible only if it includes no intent to kill, even when the means used to repel the aggression are known to be lethal.
[ii] Now Aquinas, in the same article, goes on to say that public officials (police, military, judges, etc.) can permissibly act against aggressors or criminals with, if need be, intent to kill them. But this part of Aquinasʼs teaching, long accepted in the tradition, is implicitly but unambiguously rejected by the Catechism. [iii] CCC 2263-65 extend the moral exclusion of intention to kill (even when using very lethal weaponry) to all instances of legitimate defense, including the actions of “those holding legitimate authority” exercising “the right to repel by armed force aggressors against the civil community.”
All this is confirmed by no. 2307, which heads up the section devoted to just war: “2307. The fifth commandment forbids the intentional destruction of human life….”
[i] Feser says: “Finnis himself admits that” 2263 is confusingly worded. That is not an admission, but an allusion to a rarely noticed fact that I will gladly spell out: the first sentence of 2263 in English, as Brugger noted in 2003, badly mistranslates the original (and present) French. In the French, the sentence’s second half means the opposite: “The legitimate defense of persons and societies is not an exception to the prohibition of murder of the innocent that intentional killing constitutes.” The English translation (and indeed, among others, the Latin, though not the Spanish) misreads the French que as qui, and so has reversed the meaning of the last clause, coming up with the scarcely intelligible “…prohibition against the murder of the innocent that constitutes intentional killing.” (In passing: the English translation does not err in rendering volontaire as “intentional.”) But while the French is syntactically clear, the proposition it conveys, though quite different, is not much clearer than the English.
Still, 2263 does have two quite intelligible elements: the phrase “defense of persons and societies,” and the proposition quoted from Aquinas, that self defense is justifiable provided the death of the aggressor is not intended. These two fragments of thought take on notable meaning and force when read with 2265, a meaning articulated plainly in 2307 (not to mention 2268).
[ii] Feser says all this involves “complicated exegesis of Aquinas.” Complicated? In the short passage quoted from in 2263 and 2264, Aquinas says both that private persons must never act with intent to kill, and that public officers may legitimately do so. CCC 2263 quotes Aquinas ruling that “self-defense” must not include any intent to kill; and then 2265—strikingly—applies the very same ruling to anyone defending the common good. Aquinas’s key distinction between private and public action is completely eliminated from the consideration of the morality of killing. Right or wrong, this is not complicated.
The implication of these statements in 2263, 2265, and 2307 is inescapable: contrary to much traditional teaching and practice, the Catechism is ruling out intentional killing. That is, it is ruling out killing with intent precisely to kill, as distinct from stopping attack by use of means that are known to be lethal in their effect, but (even though targeting the attacker) are chosen for—and thus intended precisely for—their stopping power, not their lethality.
These texts articulate a change in the tradition, a change that, as my essays said, deserves far more attention and discussion than it has yet received, and is much more important than the accompanying, more ambiguous shifts of position limited expressly to capital punishment.
Still, it was certainly an intentional change, and the Catechism spells it out in CCC 2307, beginning the treatment of just war: “The fifth commandment forbids the intentional destruction of human life.” Earlier, CCC 2268 began the subsection on intentional homicide: “The fifth commandment forbids direct and intentional killing as gravely sinful,” and calls the sin murder. In neither section is there any qualification reimporting the traditional position made classic by Aquinas, according to which it was permissible for public officials, acting for defense of the common or public good, or for the execution of judgments, to intend precisely to bring about death—to kill. (Note: though “intentional” in common speech can be heard as including all effects clearly foreseen as certain, the word is to be understood in 2263, 2268 and throughout these essays as referring only to acts in which death is intended—whether as an end or as a means—and is not merely a side effect however clearly foreseen as certain.)
[iii] Feser says I rely on “the 1992 version of the Catechism, specifically no. 2263.” But I did not and do not. True, the change was intended and indeed (as a matter of public teaching) initiated in 1992. But it was so poorly executed that it needed and soon received considerable amendment. As my first essay points out:
The 1992/4 treatment of legitimate defense was in its central two paragraphs (2265-6) confusingly formulated, running together forcible defense (private, police, or military) with punishment. That confusion was sorted out in 1997.
Apart from those two sentences, all references to CCC 2265 in my essays are not to anything in the 1992 Catechism, but to the 1997 edition.
This brings us, however, to a main substantive part of Feser’s first point. Doesn’t this thesis that all intentional killing is wrong simply contradict the teaching in 2266/92/94 that capital punishment is included within what that paragraph of the Catechism calls “the traditional teaching of the Church [which] has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime”? And shouldn’t exegesis avoid attributing contradictions to documents such as the Catechism? Or, if we must attribute contradiction to the Catechism here, doesn’t that “undermine its credibility, which would weaken rather than strengthen Finnis’s case”? Isn’t it ground to reject the new teaching I am seeing in the Catechism?
John Paul II—and the draftsmen of Evangelium Vitae in 1995 and of the consequent 1997 revision of the Catechism—got there before Feser. Even in 1992/94, the tension that Feser calls a contradiction was mitigated by words in 2266/92/94 that are not mentioned by Feser, but are integral to the sentence from 2266/92/94 on which his contradiction thesis relies, the sentence from which I quoted a part in the previous paragraph: “Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason the traditional teaching of the Church has acknowledged as well-founded…etc.” We see here that already in 1992 the Catechism was drawing capital punishment into the ambit of legitimate defense against aggression, where killing—doing something that foreseeably causes death—is justifiable only when the lethality of this defensive action is a side effect, not intended.
But the Catechism’s 1997 revisers, following Evangelium Vitae in thinking that the tension remained too great, too close to contradiction, radically rewrote CCC 2266 and 2267. While retaining an allusion to what “the traditional teaching of the Church does not exclude,” they removed every trace—apart from the bare terms “penalty” and “guilty party”—of the notion that the death penalty is morally warranted by any of the retributive, expiatory and other aims of punishment set out in 2266/97. According to 2267/97, the “penalty” cannot be permissible unless and because it “is the only possible way of effectively defending human lives against the unjust aggressor.”
Thus the tension, Feser’s contradiction, was sought to be eliminated by eliminating the idea that death can rightly be humanly imposed as a proportionate punishment needed in order that there be a punishment commensurate with the gravity of the crime. According to Evangelium Vitae and the 1997 Catechism, public officials may cause the death of criminals only under the very narrow circumstances in which Aquinas and the tradition allowed that private citizens may cause the death of even non-culpable (e.g., insane) aggressors: namely, when that is “the only possible way of effectively defending human lives against the unjust aggressor”—and thus, by implication, only when the death is foreseen but not intended: a side effect of action chosen (to repeat) not for its capacity to kill but for its capacity to stop.
As I have been pointing out to my students since 1997, this position too is hard to square with 2266-67/97’s yoking of “penalty” (and “guilt”) with legitimate defense, which can, after all, be employed even against guiltless aggressors (as Evangelium Vitae 56 notes). That is why, in the first paragraph of the essay to which Feser is replying, I say that the development initiated by John Paul II “still awaits a sufficient clarification and stabilization.” One cannot maintain, and I do not say, that the entire set of propositions in play is unambiguous.
And pace Feser’s talk of “Finnis’s case,” my essays do not suggest that this development of doctrine is in shape to be judged definitive. Their main concern was to argue that the “authentic development” announced by the Congregation of the Doctrine of the Faith [CDF] in August 2018 was, if authentic, not a development but, substantively, a reiteration of CCC 2263-67/97 with strongly rhetorical adjustments appealing to conditions of thought (culture) and practice that are historically contingent and reversible. And then my essays sought to indicate the narrow lines along which an authentic development might proceed.
Feser rightly observes that the fifth commandment itself, as expounded up front in the Catechism (see 2261, 2263), is against killing the innocent. As my first essay indicated, the new teaching against all intentional destruction of human life does not make innocence irrelevant. Unlike an attacker (culpable or inculpable), an innocent—in the distinct sense of someone non-nocens [literally: not-harming], that is, someone not himself attacking, harming or threatening vital interests of another—cannot rightly be made the target of lethal force, not even of force that, though foreseen to be likely or certain to kill, is not intended to kill. (See here at 312-16.)
Could the Church be This Wrong for So Long?
My comments on this point will extend through the remainder of this response. Feser formulated the issue as his final point, concluding his essay forcefully:
To teach that capital punishment is always and intrinsically wrong would be to imply that the Church has for millennia been leading the faithful into grave moral error and badly misunderstanding scripture… if the Church could be that wrong for that long about something that serious, why should we trust anything else she says?
What does Finnis have to say in response to these points? Nothing.
On the contrary: to this legitimate anxiety I did in fact respond. Across several long paragraphs, my second essay compared possible development of teaching on capital punishment with actual development of teaching on slavery and religious liberty. Feser has ignored the comparison, and the analysis, all of it.
Slavery and religious liberty were two different famous instances of, as I put it, “the reversal of a practice once, over a period of centuries, accepted by, among others, saints and popes and bishops generally, and in one way or another presented to the faithful as permissible”—and as supported by Scripture. I argued that in each instance, moral doctrine developed authentically because it proceeded
by conceptual clarification, so that a correct but undifferentiated judgment (or set of judgments) develops into two correct judgments (or sets of judgments) on alternatives now more adequately differentiated. … [Such clarification] enabled the original correct judgments [which I spelled out with some precision in relation first to slavery and then to denial of religious liberty] to be accompanied now by further correct judgments condemning slavery as distinct from [what had always correctly been judged permissible penal servitude] [and condemning state or social coercion in relation to religious practices within the limits of public order, a new condemnation both compatible with the four correct theses in the Church’s perennial teaching on religious liberty and just coercion, and derived from one of those theses].
The conceptual structure of the possible and perhaps emerging change in Church practice and teaching on capital punishment is similar.
It involves, I argued, adoption of a new thesis, about the incompatibility between human intent precisely to kill a human person and God’s lordship over life and death. That thesis has, I believe, never until recently been differentiated out or distinguished from various nearby grounds for lethal action or for irreparable penal measures—grounds long and rightly judged legitimate by the Church. So it has never, in that delineated form, been negated by any binding Church teaching. And the newly differentiated thesis is thus presumptively compatible with the teachings of Scripture that affirm the cluster of nearby true propositions, discussed in the second of my Public Discourse essays on capital punishment: (i) state enforcement of just law can rightly (like self- or legitimate defense) use means of stopping etc. that are also foreseeably lethal; (ii) state punishment is essentially retributive and therefore must not exceed (or without sufficient reason undershoot) proportionality to the offense and the guilt; and (iii) some crimes deserve death.
In sum: we find a set of permissions—to own slaves, to suppress false religions, to execute criminals—that were taught by the Old Testament, never denounced by the New Testament, and accepted in word and deed for very long periods by popes, bishops, and saints. And we find two of the set eventually repudiated as, in each case, involving or relying upon a thesis that can and must be judged morally erroneous once it is clearly distinguished from the closely related moral truths that had provided some legitimate but not sufficient support for the relevant permission. The third of the set seems, similarly, to be on the way to authoritative repudiation.
One of the necessary conditions for judging that a teaching of the universal ordinary magisterium—on a moral matter not defined by the extraordinary magisterium of pope or council—has been taught infallibly is that the teaching has been proposed as “to be held definitively” (Vatican II, Lumen Gentium 25). That condition or criterion is, in moral matters, much the more easily satisfied when what is being taught is a negative (prohibitory) moral precept, as distinct (it is not always a bright line) from a moral permission/toleration. For it is only negative precepts that (as Veritatis Splendor insistently teaches) can apply exceptionlessly (see VS 52, 67, 75-6, 90, 97, 99, etc.); and just as their prohibitory force and obligation is not subject to circumstances, so too—assuming they are fit to be proposed at all—they are the more likely to be proposed and taught as “to be held definitively.” So, in reflecting upon whether the Church’s credibility is put on the line by amended teaching on capital punishment—or slavery or suppression of false religion—it is important that, in each case, the newly formulated precept is not the purported lifting or narrowing of a moral prohibition but the abrogating or narrowing of a permission.
The negative moral precepts that come to us, in some cases from the Lord by way of his eyewitnesses, in others from the same apostolic generation, identify many forms of wrongdoing explicitly, and others implicitly. Though Jesus—mostly implicitly—permitted departures from and wholesale abrogation of legal and conventional religious prohibitions (e.g. Mark 7. 7-8, 18-19), he was not in the business of certifying permissions contained or implied in the natural moral law. So he did not give us—and was not himself held out by the Church as giving us, even implicitly—the historic permissions of slavery, religious coercion, and capital punishment. Those more or less apostolic permissions all lay within a zone of moral prohibitions conveyed in the Gospel at least implicitly, prohibitions that gradually emerged (or are emerging) to fuller specificity and explicitness in the Church’s reflection on Christ’s summons and message as a whole.
The development of moral doctrine through conceptual clarification is from toleration/permission to wider or stricter prohibition. And usury is not an exception or counter-evidence. What we call “interest” and permit (rightfully when no more than proportionate to average rates of return in a wide free market that trades in both equities and bonds) was permitted by the moral precepts prohibiting usury as they were proposed—before the emergence of such a market—by the supreme papal and conciliar magisterium in its 1515 definition (here or here): “the real meaning of usury is: when, from its use, something [say, money as a unit of exchange] that produces nothing is applied to the acquiring of gain and profit without any work, any expense or any risk.” This prohibition has remained constant; the conceptual clarifications magisterially pronounced by Benedict XIV in 1745 were not, essentially, what ushered in the change in practice and proclamation. That change resulted, rather, from the change of factual circumstances whereby lenders incur—in money, stock, and bond-market conditions of the kind now obtaining—not only (as in earlier eras) the expense of insuring against the risk of default but also, now, the average or fair-value cost (loss, expense) of forgoing the market return on equities (that is, on wide parcels of ordinary stock of risk-bearing productive enterprises).
In relation to state and private killing alike, the Church (I argued) has come to understand more deeply and explicitly both intention and “the sacredness of human life,” the latter summarizing the thesis that only God can exercise the lordship over human life and death that we assume for ourselves in acting with the intent precisely to bring about our own or another’s death. And we should notice that God’s lordship, very unlike ours, cannot involve such an intent. Though his plan of providence includes one’s death, God (as Grisez put it in 1999 at 166)
neither can nor needs to bring it about by an act of killing. He cannot kill, because killing is destructive while his intention in acting always is loving and creative; he need not kill, because creatures never are independently existing things confronting God but always are entirely contingent on his mind and will. So, death comes to a human being when God ceases to sustain his or her life, and God’s not indefinitely sustaining people’s lives is a side effect of his unique act of creating, redeeming, and sanctifying the created universe.
Getting clear about intention, human and (so far as dimly comprehensible to us) divine, is important, and helpful, in responding to modern issues and practices of martyrdom, euthanasia and suicide. Indeed, it is important and helpful also (as Grisez there explains at 168-71) in understanding just how it is that Jesus did not commit suicide, and why his death could be atoning while not involving either him or the Father in intending or doing anything with intent to bring about his death, or in intending his death as a means to our salvation—but rather, could be atoning by his intent and resolve to be faithful to his mission of inaugurating the Kingdom even though that fidelity incurs his foreseen death. This fidelity to the bitter end was the substance of that liberating (“redemptive”) sacrifice, that costly giving of self, which opens, and shows by example, the way of liberation (by grace of alignment of one’s will in faith, hope, and love to the divine willing of a new creation) from death to life in the divine presence.
Feser claims that “the legitimacy in principle of capital punishment meets the criteria for being an infallibly proposed teaching of the ordinary magisterium … [see] pp. 111-122 and 135-157 of [his book, By Man Shall His Blood Be Shed]” and that “Finnis says nothing in response to this argumentation.”
Here I was more economical, though what I did say was far from “nothing,” and was sufficient. For Feser’s discussions of infallibility, at their least implausible, consist of proposing sufficient conditions for infallibility/irreformability that are more capacious than those authoritatively taught by Vatican II in 1964, in Lumen Gentium 25. He then declares that those who, like Christian Brugger, judge that LG 25’s list was intended to be exhaustive (i.e. a complete list of sufficient conditions) are committing “the logical fallacy of confusing sufficient conditions with necessary conditions” (By Man Shall His Blood Be Shed, 138). In truth, the confusion, the logical fallacy, is entirely Feser’s. What Brugger was doing (and I join him in doing now) was reaching a historical judgment about the intent and meaning of LG 25. Reaching that judgment did not need to involve, and did not involve, any attempt to deduce “Satisfying one of these conditions is necessary” from “Each of these conditions is sufficient,” or any other any kind of oversight of the distinction between the two types of condition. It was and is a matter of attending to evidence about LG 25’s intended and/or contemporaneously accepted public meaning (public among the theologically informed faithful).
So when Feser proposes as sufficient for infallibility the slightly more capacious set of criteria proposed in Tuas Libenter, a letter of Pius IX in 1863 to the Archbishop of Munich, he ignores the fact that Vatican II’s treatment (LG 25) of the infallibility of the consensus of bishops throughout the world cites Tuas Libenter and so gives it an authoritative restriction by adding to that letter’s list of necessary conditions a further item, the one I mentioned above: that the bishops be proposing the agreed position as one that the faithful must hold definitively. Between 1863 and today there lie not only the intense and mature discussions in and leading up to LG 25, but also the even more intense discussions—focussed on the Church’s history of teaching—that led up to the definition of papal infallibility in Vatican I. True, neither Council, in defining or solemnly teaching about infallibility’s scope, explicitly declared that its list of sufficient conditions for, or kinds of, infallible teaching is exhaustive. But no one doubts that the 1870 definition was intended and understood by proponents and opponents alike to be (for its topic) exhaustive; and Feser’s appeal to elementary logic does nothing to show that the 1964 teaching in LG 25, while not a dogmatic definition, was meant to employ a different, non-exhaustive logic and intent.
Feser’s other attempts, in book and articles, to broaden the scope of irreformability all founder in ways we are becoming familiar with as we work through his text. Another sample: in arguing that infallible tradition has treated retributive or strictly punitive state imposition of the death penalty as morally warrantable (independently of special divine command), one of his theses is that John Paul II is a witness to or supporter of that tradition. Feser’s appeal is to the Catechism 2266-67/97, and he repeatedly neglects to report or confront its wording, which, as we have seen above, shows that John Paul was a tacit opponent, not a supporter.
What does the Old Testament Commit us to About Capital Punishment?
Feser’s essential thesis is that—whether by Genesis 9:6 alone or by the many provisions of Mosaic law prescribing death—the Old Testament establishes that “the death penalty is legitimate in principle.” Feser says that my essays ignore most of the evidence, and that I “say nothing” about his responses to Christian Brugger and “casually assert that the Old Testament evidence for execution as a [sic] proportional punishment is ‘null’.” And though the essays did in fact indicate why the Old Testament does not commit us to Feser’s actual position—that execution is sometimes the only proportional punishment—my argument did not spell out all its own steps.
Whatever is asserted (not merely stated) by the sacred authors in Scripture is true, and what is asserted is to be established by a back-and-forth between historical-critical research into the intentions of the authors and a contextualizing of their statements in the whole set of scriptural statements (interpretatively prioritizing the definitive revelation in the New Testament and reading every part, each statement, in the light of the whole: Vatican II, Dei Verbum 12, 16). And it is clear, even at the first step, that the scriptural author(s) were making no assertions about the “legitimacy in principle” of any kind of choice, whether to own slaves and sell one’s daughter into slavery (Exodus 21), or to exterminate entire families, clans, and cities for religious offenses (Deuteronomy 13; Joshua 7; etc.). Their assertions were of (or concerned) propositions about God’s lordship over a particular people chosen for his own, and his holy will to reform its conventional morality and its conventionally idolatrous, polytheistic world-view. Those propositions did not assert that the Mosaic divine reform of Israel’s partly immoral pre-Mosaic conventional morality ever reached such a level that its reforming precepts can rightly be treated as establishing what is legitimate for all peoples as a matter of natural law, true morality, principle.
And in due course the Apostles understood and taught that, other than the moral part of the Decalogue, there is no part of the Mosaic Law (including the Noahide precepts) from which one can read off anything “in principle,” now that with Christ the gradualized reform of the chosen people has transitioned to a universalized and definitive stage. Proof-texting citations to Genesis 9:6 by some later theological defenders of capital punishment do not change that fundamental position.
Not that Christ’s or the New Testament’s moral teaching treated everything besides the Decalogue as irrelevant, and found in the rest of the Old Testament no guidance at all to the content of natural moral law. The guidance, however, did not take the form of a syllogism along Feserian lines, which would run: whatever is prescribed in the Old Covenant as a precept of God must be legitimate in principle; capital punishment (slavery, burning of children for their father’s idolatry …) is prescribed as a precept of God; so capital punishment (etc.) is legitimate in principle. Rather, within the transition from Old to New Testament (Covenant/Alliance), there was a process of conceptual clarification similar to the much later process I described in relation to the development of Church teachings on slavery, religious liberty, and (it seems) capital punishment.
The clarification in all these cases is a matter of differentiating the various strands involved in compact, under-differentiated articulations of divine precepts or divine permissions, so as to sort out what is indeed of universal relevance as a legitimate, true moral principle, and what is merely relative to a particular (albeit chosen) people in cultural-linguistic and other circumstances now (somewhat like that people’s covenantal status) superseded.
And this is not an exercise in voluntarism, that is, in presuming that God can impose and lift moral obligations to do evil acts simply by commanding or permitting them to be done, or can make evil acts good by sheer exercise of will. Rather, it was and remains a reflective, developing doctrinal and theological understanding, a search to identify the essential and the relative in formulations of divine commands (commands all holy and good) by relating each conceptually distinguishable strand in them to their proper context in a history of gradual, revelatory moral reform, reform that has concluded in principle though not in fully adequate depth of understanding.
Only with Christ and Paul (in, for example, his letter to the Roman Christians) do the natural-law categories of in principle (inherent) rightness, permissibility, wrongness, viciousness, or virtue, become established as the framework of moral discourse. And at that point (as I amplify below), there is no in principle ratification of capital punishment or slavery or suppression of false religion—instead there is a kind of practical acceptance where there might have been repudiation. The acceptance was to last for many centuries, and to be preached (as it was with some insistence to the Waldensians), though never with a definitive affirmation of moral legitimacy in principle. Rather, at the highest level, there was an insistence that the Waldensians accept that state officials who acted with a good faith belief (undoubtedly personally shared by Innocent III) in its legitimacy did not show themselves to be culpably and knowingly opposed to God’s moral law. What counts is not (as Feser supposes of the oath of 1210) what Innocent III thought or assumed, but what he actually required the transitioning Waldensians to hold definitively.
And if saintly popes have imposed or ratified capital punishment for (as the legal historian and canonist Cyrille Dounot shows) heresy, possession of blasphemous books, sodomy, pimping and procuring, lawyers’ violation of secrets, fraudulent bankruptcy, breach of public peace by clerics, and very many other offenses, why should we judge (like Feser, if not also Dounot) that what was thereby irreformably affirmed “in principle” was the legitimacy of capital punishment as such, or of capital punishment for homicide (“…by man shall his blood be shed”)? And the legitimacy “in principle” of capital punishment for clerical breach of the peace …? Should we not rather judge that what was irreformably affirmed was that states can in due circumstances rightly punish grave crimes by the imposing (to use Aquinas’s category, though not his selected examples) of irreparably severe penalties?
The New Testament: Pius XII on Romans 13:4
That rhetorical question can be clarified by considering the next point in Feser’s reply. Pius XII’s key sentence, as my second essay quoted it from his 1954 address, runs:
The words of the sources [Scripture] and of the living teaching authority do not refer to the specific content of individual juridical prescriptions or rules of action [fn. cf particularly Rom. 13:4], but rather to the essential foundation itself of penal power.
I have italicized the only words that really matter. Yes, Feser quotes the whole sentence; but he then goes on:
…capital punishment is not even referred to. Rather Pius is rebutting the claim that the retributive or “vindictive” function of punishment in general ought to be treated as a relic of the past.
I interject: if capital punishment is “not even referred to” in 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”), Feser’s case for capital punishment is deprived of the only New Testament support on which he puts significant reliance. Of course, Feser is right to endorse Pius XII’s insistence on the justice of retributive or vindicative (better term than vindictive) punishment, and on its remaining “the essential foundation” of properly penal authority. (And if para. 7 of the CDF letter of August 1, 2018 were to be read as casting doubt on that foundation, it would show itself to be more questionable even than the amended CCC 2267 whose authenticity as doctrinal development the letter defends.) But the whole question we are debating is whether proportionate retribution, as a matter of human justice, ever requires—can be achieved only by—state capital punishment. Did St. Paul, when acknowledging the justice of “bearing the sword” and using it to carry out God’s “anger,” intend not only to ratify the institution of irreparable retributive state punishment, but also to assert that retributive state capital punishment is divinely commanded or at least permanently authorized? Pius XII’s statement, by clear implication, answers No. For what it says and means is that Paul in Romans 13:4 did not “refer to” any one kind (“specific content”) of retributively proportionate punishment as distinct from any other retributively proportionate kind. And if it was not referring to any such kind, Paul’s statement could not be ratifying it or declaring it to be permanently authorized or legitimate.
I now return to Feser. He goes on:
Indeed, if the passage implies anything at all about capital punishment, it is the very opposite of what Finnis says it implies. The pope is saying that we should not regard scriptural passages such as Romans 13:4 as applying merely to “juridical prescriptions and rules of action” of past times and cultures, but rather as having an abiding authority.
By omitting the eight words of Pius XII that I italicized in quoting the passage earlier, Feser’s paraphrase obscures—from himself and from us—how mistaken his reductive reading is. For those words immediately precede and securely establish the reference of the six words that Feser does quote. Pius XII’s sentence was not about abiding versus past/superseded rules, but about foundational warrant versus specific content. Foundational warrant is a principle of natural law/reason, of morality. Specific content—the content that only juridical rules and prescriptions can specify—is a matter of the law-makers’ judgment, to which the words of scripture and the magisterium do not (within wide limits) refer.
It is important to recognize that behind Pius XII’s deliberate relativizing of Paul’s “the sword” is St. Thomas’s classic doctrine, recalled in my essay, that the “specific content” of just punishment is all a matter of positive and therefore changeable law. There are natural law requirements of proportionality, but they fix no cardinal, content-specific minimum or maximum.
So: punitive responses by states to maximally unjust crimes may legitimately be irreparably severe (“sword”)—and thus retributively proportionate—without consisting of (say) flaying alive, or even of crucifixion, or of staking out in the desert in high summer without eyelids, or of hanging, or of decapitation, or of the needle. Punitive responses to such crimes can be retributively proportionate without being one of those or any other kind of capital punishment, but rather: long or lifelong imprisonment with hard labor or with other notable deprivations.
Pius XII’s 1954 address did not set out on a course of doctrinal revision or development. But it did remove a barrier to it. Addressing Catholic jurists from Italy, a state that had abolished capital punishment, he told them, albeit only by implication, that whether or not they accepted the legitimacy in principle (and/or the legitimacy in practice) of capital punishment (a legitimacy that he there neither affirmed nor denied), they must accept, as philosophically and theologically sound and as taught with “abiding authority” by, for example, Romans 13:4, that retributive punishments of irreparable severity, even when not required for deterrence or reform, can be justly imposed by state authorities. For retributive justice is “the essential foundation of penal power” and it is that to which “the words of [Romans 13: 4] refer,” not “the specific content,” for example, capital, or non-capital, “of individual juridical prescriptions or rules of action.”
Theologians and pastors defending capital punishment’s legitimacy were not unreasonable in citing Romans 13:4. But the support it could provide was never really secure. Just as the advice to slaves and slave-masters in Ephesians 6:5–9 presumes slavery’s permissibility but does not even look like intending to assert it, so too Romans 13:1–6 asserts nothing save that Christians ought to obey secular authority and accept deserved punishment for violating its [just] requirements. Romans 1:32 listed numerous sins and crimes for which (as God has decreed) one deserves to die. But that does not entail, and Romans 13:4 does not assert, that it is morally licit for states to punish capitally when they can render to the criminal what he deserves by measures involving no intent to kill him and thus no assumption of God’s lordship over his life and death.
Like Pius XII, the doctrinal development I am defending accepts the fairness—the retributive proportionality—of capital punishment for some classes of offense. And Romans 13:4, as Pius XII implies, goes no further. Exegetically, the verse supports punishing capitally almost as superficially and feebly as verse 1 (“… those governing authorities that exist have been instituted by God”) supports the thought that murderous tyrants rule with divine authority, and as verse 2 (“… he who resists the authorities resists what God has appointed … and will incur punishment”) supports the thought that resistance to wicked laws and decrees is morally illicit. The truth is that no part of Romans 13:1–7 asserts anything whatever about the moral side-constraints on state power—the topic of the present debate.
Forfeiture of Right to Life?
By thus, in 1954, detaching capital punishment from binding scriptural support, Pius XII further relativized his 1952 thesis that an unspecified class of wrongdoers “deprive [themselves] of [their] own right to life.” My second essay said that this 1952 sentence of the pope was “drive-by,” not because it was isolated as a defense of capital punishment (though it was his last, and his first since 1944), but because it was textually isolated, tucked into the middle of a speech to medical scientists on bioethics, far from any consideration of punishment and retribution/vindication, and from any discussion of forfeiture of rights. The pope’s long and admirable 1953 and 1954 addresses to judges and lawyers about retribution are silent about capital punishment, thereby indirectly confirming his 1954 thesis: the scriptural foundation for strong retributivism in punishment was not intended by the sacred author as a warrant for any specific kind of punitive measure as distinct from other kinds of a severity retributively proportionate to the offense.
Does the idea of forfeiture of right to life—briefly and incidentally stated by Pius XII in 1952 but conspicuously absent from his great discourses on retribution—provide a sufficient and durable basis for state capital punishment? Feser’s reply makes no progress here, since he neither points to anything that could tie specific forfeits to specific offenses, nor responds to other issues I raised: what becomes of John Paul II’s (and indeed, with internal inconsistency, Aquinas’s: see Aquinas p. 282) thesis that murderers retain human dignity and rights? Does the alleged self-deprivation of the right to life extend to self-deprivation by non-homicidal offenders (say, torturers)? Or to self-deprivation (by criminals) of other fundamental rights? Or to revenge? Or to high-utility but non-punitive exploitation of the offender’s body, etc.? And if (as the entire argument I am defending has proposed) the death penalty as imposed by a state is not per se unfair, since some crimes deserve death, but nonetheless is inherently wrong as an intentional killing in usurpation of God’s lordship over life, how does the idea of forfeiture do anything to rectify the insufficiency of desert as a warrant for state killing? Feser does not reply.
“For some crimes, no punishment less than death would be proportionate”
Finally, then, to Feser’s natural-law argument for capital punishment. He sets it out as an argument with five premises and a conclusion, identical in his book and the essay to which I hyperlinked. I argued that both the third and the fifth premises are unsound, indeed false. By claiming that my focus is on the third, Feser excuses himself from saying a word about the fifth, to which I directed more (and more prominent) counter-argument than to the third.
So a word, first, about his fifth premise: “public authorities have the right, in principle, to inflict on wrongdoers the punishments they deserve.” Against this I directed the whole two paragraphs that outlined “a possible and authentic development of Church teaching about capital punishment”—the very core of the second essay. To repeat, my argument was that (1) all grave crimes against public order can be suppressed by lethal force and (2) can and usually should be punished retributively by state law; (3) such state punishment must not (even for deterrence or reform) exceed retributively due proportion and presumptively should not undershoot that fair measure; (4) for some very grave offenses, death does not exceed what is proportionate; but (5) death is not a penalty that human beings (state authorities) can inflict without forming the intent precisely to terminate life, an intention incompatible with God’s lordship over life.
But though this was my main focus, and drew upon my first essay’s lengthy discussions of the Catechism and Evangelium Vitae—and though the enumerated theses overlap with theses of that “new” natural law theory which Feser rejects (on the basis, it seems to me, of incomprehension like that which we see so widely in his present reply)—his essay unfolds as if none of my critique of his fifth premise existed.
What about my critique of Feser’s third premise? Yet again he says nothing about my main critique of it, and reports only my subordinate observation about Aquinas (the force of which he seeks at great length to mitigate). What was his third premise? “Some crimes are so grave that no punishment less than death would be proportionate in its severity.” I have italicized the key words; without them his premise is fully compatible with all the argumentation developed in my essays. Just punishment is retributive and must be proportionate to guilt—not too severe but also not too lenient. Alas, Feser’s 600-word reply to my critique of his third premise ignores the italicized words. It is devoted to proving something I had myself reported: Aquinas holds that the death penalty is proportionate!
Yes, indeed. For some offenses (not restricted to homicides), death can be a proportionate and deserved penalty. But it does not follow that for those offenses death is the only proportionate punishment, or that, in the key words of Feser’s third premise, “no punishment less than death would be proportionate.” According to the line of development of Catholic teaching that my essays contend may be emergent, defensible and authentic, the fact that death (or perhaps an agonizing and prolonged death such as I gave some instances of above) is deserved and proportionate does not license the state or any human being to intend and impose it. About the substance and central argumentation of my essays, Feser has thus (to recycle a phrase) said nothing.