The curious case of Pope Francis and the “new natural lawyers”

The “new natural law theory” (NNLT) was invented in the 1960s by theologian Germain Grisez and has found prominent advocates in law professors John Finnis and Robert P. George.  Other influential members of this school of thought include the philosophers Joseph Boyle and Christopher Tollefsen and the theologian E. Christian Brugger.  The “new natural lawyers” (as they are sometimes called) have gained a reputation for upholding Catholic orthodoxy, and not without reason.  They have been staunch critics of contraception, abortion, euthanasia, and “same-sex marriage.”  However, the NNLT also departs in several crucial ways not only from the traditional natural law theory associated with Thomas Aquinas and the Thomistic tradition (which is what makes the NNLT “new”), but also from traditional Catholic moral theology.

 
One notorious example concerns craniotomy and abortion.  Again, NNLT writers are opposed to intentionally killing an unborn child.  However, some of them have argued that crushing a fetus’s skull so as to remove it from the mother’s body and thereby end the pregnancy need not reflect an intention to kill the fetus even though this procedure will in fact kill it.  It could reflect instead merely an intention to alter the shape of the fetus’s skull so as more easily to remove it, and in some cases be in principle justifiable (by the principle of double effect) on that basis.  This reflects the NNLT’s distinctive analysis of intention, which is very different from the traditional Thomistic analysis, and (unsurprisingly) it has generated considerable controversy among Catholic moral theologians.

Another example is capital punishment.  Scripture, the Fathers and Doctors of the Church, and a long line of popes have consistently affirmed that capital punishment can be legitimate in principle.  Indeed, some popes have taught that it is contrary to Catholic orthodoxy to deny that capital punishment can in principle be legitimate.  Even Pope John Paul II, who famously opposed capital punishment in practice, was careful explicitly to affirm that it can be legitimate at least in principle.  It has, however, become the standard view among the “new natural lawyers” that capital punishment is in fact always and intrinsically wrong, wrong even in principle and not merely in practice under modern circumstances.  Grisez started to promote this idea around 1970, and his followers have argued that the Catholic Church could reverse her consistent teaching on this subject and adopt Grisez’s novel doctrine instead. 

This is delusional and dangerous.  In our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, Joseph Bessette and I show, we think conclusively, that the legitimacy in principle of capital punishment is in fact an irreformable teaching of the Church.  (Joe and I briefly summarized some key points in an article at Catholic World Report last year, but I urge the interested reader to consult chapter 2 of the book, which devotes well over 100 pages of documentation and analysis to the subject.)  Any pope who tried to reverse this teaching would by that very fact put himself in that small company of popes who have taught doctrinal error, which Catholic teaching allows is possible when a pope is not speaking ex cathedra.  He would also severely damage the credibility both of the Church and of himself.  If Scripture, the Fathers and Doctors of the Church, and all previous popes could all be so wrong for so long about something that serious, why should anyone trust what the Church says about any other topic?  And why should anyone trust a pope who contradicted his predecessors in this way?  If they could all get things so badly wrong, why believe him?

Pope Francis and capital punishment

It might appear, however, that in Pope Francis, the “new natural lawyers” have found a pontiff who might be willing to move in their radically abolitionist direction.  For the pope has sometimes made remarks that seem, at least at first glance and when read in isolation, to condemn capital punishment as intrinsically unjust.

To be sure, as Joe and I argue in our book, when read carefully it is clear that Pope Francis has not in fact quite said this.  We devote a fair amount of space to analyzing the pope’s statements about capital punishment (see pp. 183-196), and we argue that when all his remarks are taken account of, it is evident that he does not in substance move beyond what Pope John Paul II taught.

However, rhetorically he has several times gone beyond John Paul II.  For example, in 2015 he stated that “justice is never reached by killing a human being” and in 2016 he said that “the commandment ‘thou shalt not kill’ has absolute value and pertains to the innocent as well as the guilty” and that “even a criminal has the inviolable right to life” (emphasis added).  Some of his remarks have been even more extreme.  For example, in the 2015 statement he went so far as approvingly to quote a remark he attributed to Dostoevsky to the effect that “to kill a murderer is a punishment incomparably worse than the crime itself”(!) 

Pope Francis has also not confined his negative remarks to capital punishment.  He has several times also indicated that he regards even life imprisonment as immoral.  For example, in 2014 he stated that “a life sentence is just a death penalty in disguise” and implied that opponents of the latter must therefore oppose the former as well.  He repeated this in his 2015 remarks, criticizing sentences to life imprisonment as “hidden death sentences.”  Not only does this go far beyond anything Pope John Paul II or any other previous pope said, it also conflicts with what other Catholic opponents of capital punishment say.  For example, in a 2005 document the United States Conference of Catholic Bishops recommended “life without the possibility of parole” as an alternative to capital punishment.

Again, as Joe and I show in the book, Pope Francis has also said things that point away from a condemnation of capital punishment as intrinsically immoral.  For example, in the 2015 statement he also says that the “elimination” of an aggressor is sometimes “necessary,” and that “today capital punishment is unacceptable,” indicating that it was legitimate in the past and under different circumstances. 

Then there is the fact that some of his remarks are so extreme that a charitable reader would have to conclude that the pope is in general speaking with rhetorical flourish rather than intending to make careful doctrinal remarks.  Consider the statement that the death penalty is “incomparably worse than” the crimes for which an offender might be executed.  Taken at face value, this remark is preposterous, indeed obscene.  To take just one example, Ted Bundy murdered fourteen women, routinely raped and tortured his victims, and mutilated and even engaged in necrophilia with their bodies.  He was executed in the electric chair, a method of killing that takes only a few moments.  Does any sane person really believe that executing Bundy was “incomparably worse than” what Bundy himself did?

Or consider the claim that life imprisonment ought also to be abolished.  Is the pope telling us that serial killers and mass murderers like Charles Manson, Richard Allen Davis, Khalid Sheikh Mohammed, et al. ought to be let out of prison?  Presumably not.  But then, what exactly does he mean?  Presumably he is merely expressing in a rhetorically extreme way the view that life imprisonment can be morally problematic, even if it is not always and in itself wrong.

If these remarks are to be read as mere rhetorical flourishes, though, then it is plausible that the pope’s other remarks about capital punishment are to be read as rhetorical, rather than as expressions of the view that capital punishment is always and in principle wrong.  Again, Joe Bessette and I defend this interpretation at length in our book.

All the same, it would by no means be surprising if “new natural lawyers” appealed to at least some of Pope Francis’s statements on capital punishment as evidence of papal support for their extreme abolitionist position.  Yet to my knowledge, they have not done this.  They have not said: “Pope Francis has now taught that even a criminal’s right to life is inviolable and that the fifth commandment applies to the guilty as well as to the innocent!  This is nothing less than a papal seal of approval on what we ‘new natural lawyers’ have been saying for decades!” 

This is very odd.  Critics have for years been accusing NNLT advocates of contradicting irreformable Catholic doctrine and of taking Pope John Paul II’s teaching on capital punishment in an extreme direction that he did not take it himself.  Now Pope Francis has, at least on a surface reading, given them ammunition.  Yet they have not used it.  Why not?

Pope Francis and the “new natural lawyers”

The answer, I conjecture, is that the “new natural lawyers” have found Pope Francis’s remarks on other doctrinal matters to be so distressing that they are reluctant to appeal to him on this one. 

Consider first Grisez’s response to the pope’s famous 2013 interview with Fr. Antonio Spadaro (the one in which the pope said, among other things, that the Church shouldn’t be “obsessed with the transmission of a disjointed multitude of doctrines to be imposed insistently“).  Commenting on one of the remarks the pope made in that interview, Grisez said:

[I]f it was suggested by a spirit, it was not the Holy Spirit, for it is bound to confuse and mislead.

I’m afraid that Pope Francis has failed to consider carefully enough the likely consequences of letting loose with his thoughts in a world that will applaud being provided with such help in subverting the truth it is his job to guard as inviolable and proclaim with fidelity.  For a long time he has been thinking these things.  Now he can say them to the whole world – and he is self-indulgent enough to take advantage of the opportunity with as little care as he might unburden himself with friends after a good dinner and plenty of wine.

End quote.  That’s pretty strong language – and note that Grisez made these remarks even before Pope Francis made his most controversial utterances.

Coming to those, consider next the pope’s remarks last year about the use of contraception as a way of dealing with the Zika virus.  Two NNLT advocates, Tollefsen and Brugger, have argued (plausibly in my view) that the pope’s statements are morally problematic and cannot be reconciled with Catholic teaching on contraception. 

Then there is the problematic nature of Pope Francis’s statements in Amoris Laetitia and elsewhere about divorce, remarriage, and Holy Communion (about which I have written not too long ago).  Brugger has raised worries about these statements in a series of articles (here, here, here, and here).  Grisez and Finnis have called on Pope Francis to condemn certain errors that are being propagated in the name of Amoris. 

It may be, then, that the “new natural lawyers” have come to regard Pope Francis’s Magisterium as too problematic in general to be useful to appeal to in defense of their position on capital punishment.  That is speculation on my part, but it would explain the otherwise puzzling failure of NNLT writers to trumpet the pope’s statements on that subject.  There is rich irony here.  For decades NNLT advocates have been waiting for a pope who would adopt their extreme never-even-in-principle position on the death penalty.   Yet when they finally get a pope who at least arguably comes close to this, he ends up saying things on other topics that they find highly alarming.  It must be very frustrating for them.

New unnatural loopholes

I can’t say I feel their pain, however.  For there is another rich irony here – namely that the “new natural lawyers’” position on capital punishment is, frankly, far more obviously in conflict with Catholic tradition than anything Pope Francis has said.  Not to put too fine a point on it, it takes real chutzpah for writers whose position implies that scripture, the Fathers and Doctors of the Church, and 2000 years of papal teaching have all been gravely in error to complain that Pope Francis has broken with Catholic tradition!

The pope has, after all, claimed that his most controversial remarks are perfectly in harmony with tradition, and to some extent has even tried to justify this claim.  For example, he cited an alleged policy of Pope Paul VI when attempting to justify his remarks about Zika and contraception.  Amoris cites Gaudium et Spes in support when it appears to suggest that the good of the children produced by adulterous unions might be endangered if “certain expressions of intimacy are lacking.”  I do not say that these particular appeals to tradition are plausible – I think they are not plausible – but again, it is at least claimed that there is no rupture with tradition. 

Compare that with Brugger’s book Capital Punishment and Roman Catholic Moral Tradition, which is by far the most detailed treatment of the subject written from a NNLT point of view.  It is a very curious document.  In particular, it is striking how much Brugger concedes to those who claim that the NNLT position is a radical break with traditional Catholic teaching.

For example, Brugger admits that the attempts of theologians who oppose capital punishment to reinterpret passages like Genesis 9:6 (“Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image”) are unconvincing.  He admits that the passage poses a “problem” for positions like his own, which is “left standing” even given the creative exegesis of modern biblical scholars.

While some have claimed that Church Fathers like Tertullian and Lactantius were opposed even in principle to capital punishment, Brugger also admits that this is not the case.  Indeed, he admits that there was a “Patristic consensus” on the legitimacy in principle of capital punishment (even if some Fathers opposed it in practice).

Brugger admits that when Pope Innocent III required the Waldensian heretics to affirm, as a matter of Catholic orthodoxy, that capital punishment can be inflicted without mortal sin, what the pope meant is that the punishment itself can be legitimate.  Brugger thereby disagrees with Grisez, who has tried to reinterpret Innocent III’s teaching as concerned only with subjective culpability for the act of execution rather than with the moral status of the act itself.

Brugger admits that modern abolitionism has its roots in philosophical ideas and social movements hostile to Catholicism, such as the thought of Voltaire, Hume, and Bentham, in social contract theory and utilitarianism, in the loss of belief in an afterlife and consequent emphasis on prolonging this life, and in Enlightenment and secularist thinking in general.  He admits that the experience of Catholic pastors shows that the prospect of execution often leads offenders to repentance and conversion.

Brugger admits that even Pope John Paul II, despite his opposition in practice to most executions, explicitly taught that capital punishment is legitimate in principle.  He admits that what he calls the “plain-face interpretation” of the 1997 update of the Catechism of Catholic Church does not support even the claim that a development of doctrine has taken place, much less a reversal of past teaching.  In the new edition of his book, Brugger also admits that Pope Benedict XVI would probably not agree with any attempt to construct from John Paul II’s teaching a more radically abolitionist position (as Brugger tries to do). 

In general, Brugger admits that scripture, tradition, and the history of papal teaching have consistently supported the legitimacy in principle of capital punishment, and compiles a mountain of evidence to that effect.  Rare is the author who so thoroughly if inadvertently undermines his own case.

And yet he does try to make that case.  That is to say, Brugger attempts, in the face of all this evidence to the contrary, to show that the NNLT thesis that capital punishment is always and intrinsically wrong, wrong even in principle and not merely in practice, is compatible with Catholicism.   The attempt involves two basic lines of argument.  First, Brugger claims that while the Church has always taught that capital punishment is legitimate in principle, she has not done so in a strictly irreformable way.  Second, he claims that even though Pope John Paul II did not explicitly teach that capital punishment is immoral in principle (and indeed explicitly taught the opposite), such a teaching is nevertheless implicit in some of the things he said. 

Now, in By Man Shall His Blood Be Shed, Joe and I examine these lines of argument in detail, and we show that they are completely without merit.  Indeed, you will find in our book the most thorough response yet given to Brugger and other NNLT writers on capital punishment.

I direct readers interested in a critique of the NNLT position to our book, then.  The point I want to emphasize for present purposes is this: By Brugger’s own admission, the NNLT position on capital punishment is radically discontinuous with what the Church has traditionally taught, has not yet been shown to be reconcilable with scripture, and requires departing from the “plain-face interpretation” even of the magisterial texts most favorable to it.  How is that any better than what the “new natural lawyers” find troubling in some of Pope Francis’s statements (which at least claim to be in continuity with tradition)?  How can it be permissible for NNLT advocates to ignore the “plain-face interpretation” of John Paul II’s statements in Evangelium vitae in favor of some purportedly deeper new doctrine vis-à-vis capital punishment, if it is impermissible for even a pope to ignore the “plain-face interpretation” of John Paul II’s statements in Familaris consortio in favor of a purportedly deeper new understanding of Holy Communion for the divorced and remarried?  Why do the “new natural lawyers” get a pass if Pope Francis doesn’t? 

In fact what NNLT advocates worry that they see in Pope Francis and his defenders is something they have for decades been practicing themselves – “lawyering” in the sense of looking for loopholes in Catholic tradition by which some novel doctrine might be introduced into it, and by which the novelty might be acquitted of the charge of heterodoxy on a technicality.  On the back cover of the first edition of Brugger’s book, a blurb from Grisez tells us that Brugger “defends the proposition that the Catholic Church could teach that capital punishment is always morally wrong” (emphasis added).  But looking for ways by which the Church “could teach” such-and-such is a very odd way of doing Catholic theology.  One would have thought that the idea was rather to find out what the Church does in fact teach.  After all, as the First Vatican Council declared:

For the Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles.

The theologian’s business, the “new natural lawyers” would rightly warn us, is not to remake Catholicism in the image of Walter Kasper’s personal theology.  But neither is it to remake Catholicism in the image of Germain Grisez’s personal theology.  The disease the NNLT writers diagnose is one they have played no small part in spreading themselves.