Three Popes & Capital Punishment (vs. Ed Feser)

Three Popes & Capital Punishment (vs. Ed Feser) October 20, 2020

(with Catholic Theologian Dr. Robert Fastiggi)

From the combox of my article: Steve Skojec: Pope Sez Death Penalty is Intrinsically Evil (?) [10-8-20] Catholic philosopher Ed Feser’s words will be in blue; Dr. Robert Fastiggi’s in green.


Dave writes:

Philosopher Ed Feser is a big proponent of it

No, Dave, that is not what I have said. I have said that the pope’s statements on the subject are ambiguous. I have written a lot about this, most recently here.

Dave also writes:

Fastiggi does a far better job than I did, in replying to Ed Feser on this score

Fastiggi is a good man and means well, but he does a terrible job, as I have shown in several places, such as in my long exchange with him here.

I am glad to see that at least you acknowledge that a pope cannot teach that capital punishment is intrinsically evil, because, as you say, this would “massively contradict previous magisterial teaching.” Perhaps you do not realize that Fastiggi, whose views you seem to rely on, is not willing to acknowledge that. He gravely errs on that point, sadly — evidently because he wants to leave “wiggle room” for the pope if he decides explicitly to contradict the tradition.

Hi Ed,

Thanks for replying. You’re not personally in favor of capital punishment? I thought you were. Or perhaps you believe something like, “I’m personally opposed to it but popes cannot teach that it can never be used, and it is fully defensible from Catholic tradition.”

I have always held that capital punishment (over against something like abortion) is not intrinsically evil; obviously, when I favored it in some cases, and also now that I oppose it in all cases.

Bob wrote, in the article I cite (hosted on my site):

If the magisterium in the future declares capital punishment—even under certain conditions—to be intrinsically evil, I’ll abide by the magisterium’s judgment. This would be an indication that there was no prior definitive magisterial teaching on the subject. Feser could shout “error” all he wants, but his shouts could never match the authority of the Catholic magisterium.

That is not a position whereby one thinks prior Catholic tradition may be subverted or overturned, but rather, a view that (were that to occur) “prior definitive magisterial teaching” did not exist, and that one would need to reinterpret prior tradition were the Church to declare capital punishment intrinsically evil. I think this has happened many times in Catholic history, and (I would argue, and have argued in print) few if any cases of it were as striking and “shocking” as Jesus and Paul’s “reinterpretation” of the relationship of the Mosaic Law and the Old Covenant to the New Covenant and the gospel.

That’s simply saying that he will abide by what the magisterium teaches, whether he was inclined to agree with a teaching that may theoretically come in the future, or not. I submit that this is the attitude that all Catholics are obliged to possess. It’s the dissent from the magisterium which is the common grave error of liberal dissenter and reactionary complainer and quasi-schismatic, pseudo-Protestant alike.

Now, I may be wrong, but my understanding of Bob’s position is that he doesn’t think capital punishment is intrinsically evil. I had extensive personal discussions with him in 2017 in my own house, the night that I changed my mind on the topic. And if I recall correctly, he claimed then (or in other discussions I had with him) that you were misrepresenting his position on this.

I will write to him today. I’m pretty sure he will want to clarify, and will likely show up in this combox to do so.

I’m always happy and grateful to be corrected, whether by you or Bob regarding your own positions, or anything else.

Hi Dave,

Yes, I think it is a bad idea to abolish capital punishment completely. But that’s not what I was referring to. Your subject line said: “Steve Skojec: Pope Sez Death Penalty is Intrinsically Evil (?)” and then your opening sentences were: “This dead horse continues to be beaten. Philosopher Ed Feser is a big proponent of it, and many reactionary Catholics take this tack. Skojec, of One Vader Five infamy, pontificated on this question yesterday, and revealed himself to be quite the cynical mind-reader.”

So, from that it is clear that you were attributing to me the claim that Pope Francis has flatly declared the death penalty to be intrinsically evil. That attribution is what I was responding to. I have not said that the pope has flatly declared it intrinsically evil. I have said that his statements are ambiguous between that reading and a “prudential judgment” reading.

Re: Fastiggi, I do not think he has said that capital punishment is intrinsically evil, but what he has said (as your quote from him indicates) is that he is not convinced that the Church has definitively taught that it is not intrinsically evil.

Now, he is simply wrong about that. The Church has in fact taught this definitively, as I have shown e.g. here.

Your original remark in your post seemed to indicate agreement with that view. You wrote: “Pope Francis, like Pope Benedict and St. John Paul II before him, is not asserting the intrinsic evil of capital punishment. Indeed, he could not, within the Catholic worldview, since this would massively contradict previous magisterial teaching.”

Fastiggi would never lock himself in like that, but you are right to do so. For such a change would indeed massively contradict previous magisterial tradition. Fastiggi wants to say instead that it would only seem to contradict it – that, if a pope decided to declare capital punishment intrinsically evil, then this would show that scripture, the popes, the Fathers, etc. had never really definitively taught that capital punishment is not intrinsically evil, but only seemed to. That what everyone for over 2,000 years took scripture and tradition to teach was really the opposite of what it really taught.

This, I submit, is Orwellian stuff (“We have always been at war with Eastasia”). It turns popes into exactly what the Church’s critics falsely accuse them of being – arbitrary dictators who can manufacture doctrine however at will, even contradicting scripture and tradition, and pretend that they are not doing so.

And the example of Jesus and Paul vis-à-vis Moses is not a good parallel. Public revelation was open then. Moses could be reversed by Christ. But as the Church has always taught, public revelation has now been closed for 2,000 years. Popes have no authority to reverse the teaching of scripture. They are not Christ, but merely his vicars. To attribute to them the power to reverse scripture the way Christ reversed Moses is precisely to embrace the caricature of the papacy that the Church’s critics always attack.

First of all, when I wrote, “Philosopher Ed Feser is a big proponent of it,” I was referring to the death penalty itself, not the notion that the pope thinks that it is intrinsically evil (which he does not). I’ll take the blame for being sufficiently unclear as to warrant a bracketed clarification. It will now read, “Philosopher Ed Feser is a big proponent of it [capital punishment]”. I didn’t think this was a controversial statement, seeing that you co-wrote a widely cited book entitled, By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment.

You still have not told me what your personal view on the matter is (I haven’t read your book). It’s not hard to do at all. So, for example, in my case, before late 2017 I believed it was permissible and just for use with mass murderers and terrorists only. Then I changed to a position whereby I think it is never warranted (while still believing it is not intrinsically evil), which I believe to basically be the position of Pope Francis and his two predecessors.

If you tell me what your own view is (i.e., in which cases you believe it is justified as a punishment), I will clarify that, too, accordingly, in the article (not wishing to misrepresent anyone and wanting to be as accurate in details as possible).

I still think you are exaggerating, if not distorting, Dr. Fastiggi’s views. As I interpreted them (and I know him pretty well, as a personal friend for more than fifteen years, and one with whom I rarely disagree), he agrees that the Church has not taught in the past that capital punishment is intrinsically evil, and does not do so now. I would guess that he would think the Church never will say that it is intrinsically evil. If this is accurate, it is identical to my own view.

All he said (again, if my reading is accurate) is that if (theoretically) the Church declared that it was intrinsically evil, then he would have to radically re-examine his own position and revise it, because this is what obedient, magisterial Catholics do. They follow the magisterium and do not believe that it ever contradicts itself. And they do not say that “the magisterium is wrong in a matter that it has infallibly determined.” That is a self-defeating position for any Catholic to take.

Of course, he needs to speak for himself and I believe he will. I wrote to him today about this. I’m sure he’s busy with his work, or he would have already responded. Or else he is preparing a massive refutation, and he is presently at work on it . . . :-)

Dave, I just told you what my view on CP is. I said: “Yes, I think it is a bad idea to abolish capital punishment completely.” Naturally, I could say more (e.g. about exactly what sorts of crimes should be eligible for CP) but that’s not the subject I was addressing in the first place. I bothered to comment on your post only because you appeared to be mistakenly attributing to me the view that the pope had flatly declared CP intrinsically evil. I appreciate your correcting the record.

Re: Fastiggi’s views, I’d direct you to my long exchange with him that I linked to above.

Re: a theoretical scenario where a pope non-infallibly declared CP intrinsically evil, I would say that what we’d have in that case is a situation — extremely rare, but it happens (as it did with Pope Honorius and Pope John XXII) — where a pope teaches error. The church and her theologians have always allowed that this is possible in principle when a pope teaches non-infallibly (indeed, the possibility of an erroneous non-infallible statement follows logically from its being non-infallible). As I have noted in several places, Donum Veritatis explicitly allows that a loyal theologian could respectfully criticize such a deficient magisterial statement.

Fastiggi is clearly extremely reluctant to acknowledge that this could happen. I understand why, because it would be a major crisis for the Church. But it is possible, and indeed has happened at least a couple of times. And Fastiggi goes too far in his desire to want to avoid countenancing such a situation, when he claims that the Church has not definitively taught that CP is not intrinsically evil, thus leaving “wiggle room” for a pope who wanted to teach that it is intrinsically evil.

Again, see the book I wrote with Joe Bessette and the article I linked to above, i.e. this one.

It simply defies all logic and evidence to pretend that scripture and the Church have not definitively taught that CP is not intrinsically evil.

Re: a scenario where a pope claimed infallibly to be teaching that CP is intrinsically evil — e.g. if he said “With my full authority as successor of Peter, I hereby infallibly declare and define that capital punishment is always and intrinsically evil” — well, that would simply falsify Catholicism, just as much as if a pope claimed infallibly to teach that the doctrine of the Trinity is false or that Christ was not divine.

Now, it would be ridiculous for a Catholic to say: “I’m a loyal Catholic. Hence, if the pope claimed infallibly to declare the doctrine of the Trinity to be false, I’d have to go along with that.” But in the same way, it would be ridiculous to say: “Since I’m a loyal Catholic, if the pope claimed infallibly to declare capital punishment to be intrinsically evil, I’d have to go along with that.” No, what that would mean in both cases is that Catholicism is false. Because though the Trinity is, of course, a more important doctrine than the legitimacy in principle of CP, the latter has nevertheless been definitively taught in scripture and tradition. Hence in either case, a pope who tried infallibly to teach otherwise would be doing what Catholicism claims a pope will never do.

But fortunately, neither of these scenarios will ever happen, because Catholicism is not false. I would say that God would prevent a pope ever from claiming infallibly to teach either of these things.

What is truly self-defeating for a Catholic is to make his position entirely unfalsifiable by saying “Even if a pope flatly contradicted scripture and all his predecessors, we’d have to accept that.” That plays right into the hands of critics of the Church who claim that popes think they can manufacture any doctrine they like and then magically make it “consistent with tradition” just by saying it is. That’s not Catholicism, it’s Orwell’s Ministry of Truth.

This analogy just came to me:

Proposed Analogy: Mary Mediatrix and “Inadmissible” Capital Punishment

A) God willed to include Mary as a Mediatrix in all instances of grace extended to his creatures, even though it was not intrinsically necessary at all (God’s actions alone being sufficient). [universal “positive”]

B) Likewise, God is currently willing in the Mind of His Church (expressed through three straight popes) that — in its current development — all instances of capital punishment are “inadmissible” and contrary to a full-fledged Gospel of Life, even though capital punishment is not intrinsically evil (as the Church has always held). [universal “negative”]

In both cases, God (whose will was explicated through His Church and especially its leaders, the popes), willed that something non-necessary or intrinsically unnecessary in and of itself, is altogether “fitting and appropriate.”

The Church came to more fully understand Mary Mediatrix as the centuries unfolded, within a fuller Catholic Mariology (which is subservient to Christology), just as she has come to more fully understand that there are superior alternatives to capital punishment, and its place in a subservient relationship to the overall Gospel of Life.

It’s not a good analogy, Dave. As I show in my Catholic World Report article “Capital Punishment and the Infallibility of the Ordinary Magisterium” (which I linked to above), the Church has definitively taught not only that capital punishment is not intrinsically contrary to the natural law, but also that it is not intrinsically contrary to the higher demands of the Gospel. So, if the Church were to teach what you are proposing, she would be reversing herself, not developing doctrine. So the case is very different from the Mariological doctrine, which is not a reversal of past teaching at all but a development.

Furthermore, it is not correct to say that “three straight popes” have taught what you are describing. Popes JP2 and Benedict were very careful explicitly to reiterate that the traditional teaching of the Church affirms the legitimacy in principle of CP. Pope Francis has not been as cautious or precise in his statements. Indeed, as I show in my article “Three Questions for Catholic Opponents of Capital Punishment” (also linked to above), when the pope has quoted JP2, he has altered JP2’s formulations to make them more extreme, and in other ways too has made statements that are far more extreme than anything JP2 or Benedict ever said.

It is not “pope-bashing” to note that. It would be extremely easy for Pope Francis explicitly to say “Yes, of course capital punishment is not intrinsically wrong, but…” and then go on to call for its abolition in terms as strong as he likes consistent with that acknowledgement. It is not disloyal, reactionary, etc. for Catholics to express their concern about his persistent refusal to do that, any more than it was disloyal, reactionary, pope-bashing, etc. for Catholics of the past respectfully to criticize the deficient doctrinal statements of Pope Honorius and Pope John XXII.

I’m waiting for Dr. Fastiggi to chime in. Thanks again for your input.

Bob Fastiggi has responded: “I am at a Marian Symposium at the Our Lady of Guadalupe Shrine in LaCrosse, WI. I’ll write a short article responding to Feser next week.”

[nine days later]:

Thank you for your articles on capital punishment. I do intend to write a longer article on this subject, but I’ve been preoccupied with some other matters. For now, I’ll say that the term “inadmissible” is not devoid of theological meaning as some have claimed. It has been used before by the magisterium as this article shows.

Another point is that the magisterium does not need to condemn an action as intrinsically evil in order to issue a universal prohibition of it. Pope Innocent III in his 1201 Letter to the Bishop of Tiberius states that God allowed the taking of several wives by divine dispensation in Old Testament times (cf. Denz.-H, 778). Could God grant a dispensation to do something intrinsically evil? In light of the Gospel, however, The Council of Trent, in canon 2 of its Doctrine on Marriage, anathematized those who said it was lawful for Christians to have several wives (Denz.-H, 1802). So the Church has universally condemned polygamy but has refrained from teaching that it is intrinsically evil because God allowed it in the Old Testament. Even St. Thomas Aquinas was hesitant to state that the plurality of wives is absolutely against the law of nature (cf. Summa theologiae Suppl. q. 65).

Dr. Feser claims that John XXII and Honorius I were in error. Both of those popes, though, made statements on certain open questions before the Magisterium had issued definitive teachings on the subjects in question. See St. Robert Bellarmine, De Summo Pontifice, Book IV, chapters XI and XIV. Finally, it’s important for Catholics to adhere to teachings of the ordinary papal magisterium with religious submission of will and intellect according to the Pontif’s manifest mind and will (Lumen Gentium, 25). Pope Francis has clearly taught that the death penalty today is inadmissible. His manifest mind and will on the subject is clear enough, and Catholics should adhere to what he teaches with religious submission of will and intellect. Obedience to teachings of the magisterium is, in the final analysis, far more important to the Church’s mission than ongoing support for the death penalty.


Photo credit: kalhh (8-11-17) [PixabayPixabay License]


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