Msgr. Swetland’s confusions

Msgr. Stuart Swetland is a theologian and the president of Donnelly College.  You might recall that, almost a year ago, he gained some notoriety for his bizarre opinion that having a positive view of Islam is nothing less than a requirement of Catholic orthodoxy.  As that episode indicates, the monsignor is not the surest of guides to what the Church teaches.  If there were any lingering doubt about that, it was dispelled by his performance during my radio debate with him last week on the subject of capital punishment.

In the course of our exchange, Msgr. Swetland let fly a barrage of false statements and fallacious arguments (not to mention continual interruptions and an insult or two).   But two of his claims stand out as especially grave.  First, the monsignor claims that the Church could in the future teach that capital punishment is “intrinsically evil.”  Second, he claims that, whether or not capital punishment is intrinsically evil, Catholics are now obliged to oppose it in practice.  As Joe Bessette and I show conclusively in our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, both of these assertions are false.  Msgr. Swetland no doubt means well, but he is seriously misrepresenting Catholic doctrine.  Let’s consider his claims in turn.

Msgr. Swetland versus Catholic doctrine on scripture

Msgr. Swetland tells us that while the Church historically has taught that capital punishment can in principle be legitimate, she is nevertheless “coming to recognize it as intrinsically evil.”  He acknowledges that the Church has not gone so far as explicitly to teach this, but he thinks that she could do so in the future, and evidently this is a change he would welcome.  For the thesis that capital punishment is an “intrinsic evil” is, he says, a “theological speculation” which he personally favors.  In the monsignor’s opinion, “it’s always wrong to choose death – God never chooses death.”

That “God never chooses death” would be a surprise to Ananias and Sapphira, Korah, the firstborn of Egypt, and countless others who are described in scripture as having been slain by God.  But putting that aside, capital punishment is certainly sanctioned throughout scripture, as we document at length in the book.  Judging from an essay Msgr. Swetland contributed to a volume on Catholicism and capital punishment, he has been influenced in his thinking on this subject by “new natural law” theorist and death penalty opponent E. Christian Brugger (whose book on capital punishment Joe and I respond to at length in our own book).  But even Brugger acknowledges that capital punishment is sanctioned throughout scripture.  For example, Brugger admits that existing attempts to reinterpret Genesis 9:6 (the verse quoted in the title of our book) are not convincing, and that the passage remains a “problem” for views like his own. 

Now, as Joe and I also note in the book, it is the de fide teaching of the Catholic Church that scripture cannot teach error where matters of faith and morals are concerned.  Note that we are not saying that scripture teaches error on other matters.  The point is that, whatever one says about that issue, that scripture is inerrant at least on matters of faith and morals is undeniably a doctrine of the Church.  The Church also lays down clear criteria concerning how scripture can be interpreted.  Hence, the First Vatican Council says:

These books the Church holds to be sacred and canonical not because she subsequently approved them by her authority after they had been composed by unaided human skill, nor simply because they contain revelation without error, but because, being written under the inspiration of the Holy Spirit, they have God as their author…

[I]n matters of faith and morals, belonging as they do to the establishing of Christian doctrine, that meaning of Holy Scripture must be held to be the true one, which Holy mother Church held and holds, since it is her right to judge of the true meaning and interpretation of Holy Scripture.

In consequence, it is not permissible for anyone to interpret Holy Scripture in a sense contrary to this, or indeed against the unanimous consent of the fathers.

End quote.  Now, the Church has always held, and still holds, that the legitimacy in principle of capital punishment is taught in scripture.  And as even Brugger admits, there was a “consensus” among the Fathers of the Church that the legitimacy in principle of capital punishment is taught by scripture.  This shows, all by itself, that to say that capital punishment is “intrinsically evil” is manifestly irreconcilable with Catholic orthodoxy.  For if scripture cannot teach moral error and the consensus of the Fathers on what scripture says also cannot be in error, and the Fathers hold that scripture teaches that capital punishment is not intrinsically evil, then capital punishment is not intrinsically evil, and that’s that. 

Msgr. Swetland’s “theological speculation” that capital punishment is intrinsically evil is, accordingly, simply heterodox.  He has no right as a Catholic theologian to entertain it or to teach others that it is within the range of legitimate theological opinion.  In 1976, under Pope Paul VI, a Vatican commission on capital punishment stated:

That the state has the right to enforce the death penalty has been ceded by the church for centuries… The Church has never condemned its use by the state… The Church has condemned the denial of that right. 

In stating this, the commission was echoing the solemn teaching of previous popes like Innocent III, who required that the Waldensian heretics affirm the state’s right in principle to resort to capital punishment as a condition of their reconciliation with the Church.  (The relevant texts can all be found in our book.)

As these remarks indicate, and as Joe and I demonstrate in the book, there are several lines of argument that show that the judgment that capital punishment is “intrinsically evil” is heterodox.  But the scriptural considerations are the ones that came up in the debate, so let’s focus on those. 

During our debate, I repeatedly asked Msgr. Swetland if it was his opinion that scripture teaches moral error.  And it is telling that Msgr. Swetland repeatedly failed to answer that question directly.  He didn’t say “Yes, scripture teaches moral error” – and to do so would, of course, put him at odds with the First Vatican Council and with various papal statements on the inerrancy of scripture – but, interestingly, neither did he say “No, scripture never teaches moral error.”  What he repeatedly did instead was to try to dodge the question by changing the subject, in (by my count) four different ways.  Let’s consider them one by one: 

1. The “development of doctrine” canard: Msgr. Swetland claims that the thesis that capital punishment is intrinsically evil would be a “development” of past Catholic teaching.  In fact, of course, it would not be a “development” at all, but an outright rejection and reversal of past teaching.  Orthodox Catholic theorists of the “development of doctrine” – most famously, Cardinal John Henry Newman – are always careful to distinguish a true development from a reversal or corruption of doctrine.  A development never contradicts what the Church has solemnly affirmed in the past.  It simply makes explicit what was previously only implicit in the tradition.  It may involve closing off certain theological options that had previously been left open to free discussion.  But what it cannot do is to take some proposition that scripture and tradition have positively asserted and then go on to negate it.  That would be to introduce a contradiction into the tradition, and thereby to falsify the Church’s claim to preserve intact the deposit of faith.

Msgr. Swetland repeatedly cited slavery as an example of something the Church previously approved of but later condemned, at the Second Vatican Council.  He claims that for the Church to teach the intrinsic immorality of capital punishment would be to make a similar change.  But as I tried to explain during our exchange, the monsignor grossly oversimplifies and misrepresents the history of Catholic teaching on slavery.  What most people think of when they hear the word “slavery” is chattel slavery, which involves complete ownership of another person, the way one might own an animal or an inanimate object.  This is indeed intrinsically gravely evil, and the Church condemns it.  But the Church has always condemned it.  It is not some novel or recent teaching.

There are, however, other practices that are sometimes loosely labeled “slavery” but which are very different from chattel slavery.  For example, there is indentured servitude, which is a contract to give the right to one’s labor to another person for a prolonged period of time – for example, in payment of a debt.  And there is penal servitude, which involves forcing someone to labor as part of a punishment for a crime.  Catholic theologians have long regarded some of these practices as so morally hazardous, and in particular as posing a serious enough danger of degenerating into chattel slavery, that in practice they ought not to be employed.  But the Church has not condemned them as intrinsically immoral the way chattel slavery is.  Indentured servitude, after all, is essentially an extreme version of an ordinary labor contract, and penal servitude is an extension of the loss of liberty any justly punished prisoner is already subject to. 

This is not to deny that some individual Catholics have in the past fallaciously blurred the differences between these different practices so as to try to justify what amounts to chattel slavery, or that in the past some Catholics have positively approved of institutions like indentured servitude and not merely allowed that they might be permissible in principle.  But when the relevant distinctions are made, it is clear that it is simply not true to say that the example of slavery shows that the Church herself once regarded as legitimate something she later condemned as intrinsically immoral.  What she now regards as intrinsically immoral (chattel slavery) she always regarded as intrinsically immoral.  What she has historically held is not intrinsically immoral (indentured servitude and penal servitude) she still has not condemned as intrinsically immoral.  There simply has been no change of the sort Msgr. Swetland claims there has been, and which his argument requires there to have been.

The monsignor alleges that Gaudium et Spes 27 conflicts with my position, but it does no such thing.  The passage is a general condemnation of practices that conflict with human dignity, and it gives a long list of examples, including not only slavery but also “deportation,” “attempts to coerce the will,” and “disgraceful working conditions.”  What it does not do is to define any of these terms precisely or to make clear which practices are intrinsically evil and which are evil only given certain circumstances.  Is Gaudium et Spes teaching that it is always and intrinsically wrong to deport someone (including, for example, sending a dangerous criminal back to his home country to be prosecuted)?  Is the document saying that it is wrong to threaten a child with punishment if he does not do his homework (since this in some sense coerces his will)?  Is it claiming that it is wrong to employ people in treating sewage or cleaning toilets, in coal and salt mines, or other unpleasant or dangerous occupations? 

No one claims that Gaudium et Spes teaches any of these things.  Its passing references to deportation, coercion, working conditions, etc. don’t address every question that might arise about these topics, because the passage in question isn’t trying to do that in the first place.  It is simply making a general statement about human dignity and providing some brief illustrations.  But by the same token, its passing reference to slavery is not trying to address every question that might arise about indentured or penal servitude, the proper interpretation of biblical passages that refer to slavery, etc. 

This account of the history of Catholic teaching vis-à-vis slavery is not, by the way, some eccentric view of my own.  It is common among mainstream theologians faithful to the magisterium of the Church.  Interested readers should get hold of Fr. Joel Panzer’s book The Popes and Slavery.  Some useful articles can also be found online here, here, and here.

Writers who claim that the Church made some radical about-face on the subject of slavery tend to be “progressive” theologians who are keen to use the example to justify radical changes to Catholic teaching on other matters – especially sexual morality – and to portray the Church of the past in a negative light.  Why the monsignor would have any truck with such people, I have no idea. 

2. Ignoring the distinction between permitting and commanding:  A second way Msgr. Swetland tried to dodge my question about whether he thinks scripture has taught moral error is by insinuating that scripture merely “permitted” capital punishment.  Now, to “permit” something is of course not necessarily to approve of it.  Suppose a prickly neighbor of yours keeps taking fruit from a tree in your front yard without asking you first.  But suppose also that you can live without the fruit and want to remain on good terms with this person, so that while you’d prefer that he not do this, you let it slide.  You are permitting him to take the fruit even though you do not approve of him doing so. 

Now, if scripture were merely permitting capital punishment in this sense, then there would be no reversal of scriptural teaching if the Church were to condemn it as intrinsically evil.  But as I pointed out to Msgr. Swetland, scripture goes far beyond merely permitting capital punishment.  There are many scriptural passages which positively approve of or even command capital punishment.  For example, the Mosaic Law commands capital punishment for various offenses as part of the everyday system of criminal justice in ancient Israel.  To be sure, that does not entail that those commands have application today, any more than other parts of the Mosaic Law do.  But it does entail that, if capital punishment is (as Msgr. Swetland thinks it is) “intrinsically evil,” then we have to say that God commanded the Israelites to carry out intrinsically gravely evil acts as part of everyday life in Israel.  It would be like God, through Moses, commanding the Israelites to perform abortions with regularity.  How can this supposition possibly be reconciled with the Church’s de fide teaching that scripture does not teach moral error? 

Nor is positive approval of capital punishment (as opposed to mere permission) by any means limited to the Mosaic Law.  It can also be found, for example, in Genesis 9:6 and Romans 13:1-4.  (In the book, Joe and I address at length attempts by Catholic opponents of capital punishment to reinterpret these passages.)

3. Ignoring the difference between prudential judgments and judgments of principle: A third way the monsignor attempted to avoid directly answering my question was by asking me questions.  For example, he asked me if I would approve of applying the “eye for an eye” principle by gouging an offender’s eye out.

My answer to him was that I would not approve of applying it in that way, but not because doing so would be intrinsically wrong.  It would not be intrinsically wrong.  Consider the monstrous Lawrence Singleton, who raped a fifteen-year-old girl and cut off her forearms with a hatchet.  This poor woman has to spend every day of the rest of her life not only disabled, but reminded of everything he did to her.  Now, did Singleton deserve to have his own arms cut off as punishment?  Absolutely he did.  However, I would disapprove of actually meting out such punishments, to Singleton or to anyone else.  For the moral hazards of routinely inflicting such gruesome punishments are simply too great.  But this is a prudential judgment about how to apply moral principle, not a judgment to the effect that such punishments are intrinsically wrong.

The point is that to disapprove of extreme punishments like the ones in question does not commit one to saying that scripture approves of what is intrinsically immoral.  Hence, if the monsignor meant to insinuate that the “eye for an eye” principle is an instance of scripture teaching moral error – though again, he does not explicitly say that – the example would not in fact support his case.

4. The “fundamentalist” smear:  The fourth way in which Msgr. Swetland attempted to dodge my question was by a hand-waving reference to “difficult passages in scripture” and the accusation that my own reading of the specific passages that conflict with his view about capital punishment is “bizarre,” “not very Catholic,” and “sounds very fundamentalist.”

The truth, of course, is that my reading of the relevant scriptural passages is simply the reading one finds in the Fathers and Doctors of the Church, in two millennia of papal teaching, and in two millennia of mainstream Catholic theology.  No Catholic theologian with a reputation for orthodoxy found these passages remotely “difficult” until about forty years ago, when Germain Grisez and other “new natural lawyers” invented their novel doctrine that capital punishment is intrinsically evil, and decided to try to find some way to change Catholic teaching to conform it to their personal theory.  To label my reading of the relevant passages “bizarre” and “not very Catholic” is, frankly, Orwellian.

As to the charge of “fundamentalism,” Msgr. Swetland never explains how Joe and I are guilty of that.  Is he claiming that we simply dogmatically appeal to scriptural proof texts, without giving arguments for the correctness of our reading or engaging with alternative readings?  As anyone who has actually read our book knows, that is precisely the opposite of the truth.  In fact we engage the exegetical disputes at length.  But then, the “fundamentalist” label is rarely intended as a serious tool of theological analysis.  Its use is rhetorical, a smear by which “progressive” theologians attempt to shut down debate.  Again, why Msgr. Swetland would think it a good idea to ape their tactics, I have no idea.

The irony is that it is Msgr. Swetland himself who is engaging in dogmatic proof-texting.  In particular, he repeatedly cites a remark from Pope John Paul II, or a passage from the Catechism or from some other church document, as if it suffices to prove his case – completely ignoring the fact that the correct interpretation of these sources is itself precisely part of what is at issue between us.  This question-begging procedure exhibits exactly the kind of dogmatic and simplistic thinking of which he accuses Joe and me.

Msgr. Swetland versus Pope Benedict XVI

Let us turn now to Msgr. Swetland’s other major error.  He claims that, even if he is wrong about capital punishment being intrinsically evil, Catholics are nevertheless now obligated to oppose it in practice.  Says the monsignor:

For prudential reasons, the bishops in the United States have said no Catholic can, without disobeying the bishops, be supporting… the death penalty in the United States.  So, while theoretically we can talk about this, practically Catholics in the United States are bound, I believe, under the power of the teaching authority of the bishops in the United States to oppose the death penalty on prudential reasons.

End quote.  Now, there are several reasons why this cannot be correct, which Joe and I spell out in the book.  But one consideration I raised in the radio debate with Msgr. Swetland is a 2004 statement from Cardinal Joseph Ratzinger, then Prefect of the Congregation for the Doctrine of the Faith (that is to say, the chief doctrinal spokesman of the Church next to the pope), and later to become Pope Benedict XVI.  Ratzinger wrote:

Not all moral issues have the same moral weight as abortion and euthanasia.  For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion.   While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment.  There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.

End quote.  Now, it could not be clearer that what Cardinal Ratzinger is saying here flatly contradicts what Msgr. Swetland alleges.  The monsignor says that Catholics cannot be “at odds with” the pope on the subject of capital punishment.  Cardinal Ratzinger says that they can be.  The monsignor says that there cannot be “a legitimate diversity of opinion” among Catholics about “applying the death penalty.”  Cardinal Ratzinger says that there can be. 

The way Msgr. Swetland tried to get around this problem during our exchange was by seriously misrepresenting what Cardinal Ratzinger said.  He insinuated that what Ratzinger was saying was merely that “there is room for legitimate disagreement about the theoretical permissibility of the death penalty.”  The monsignor alleges that “at least now we all have to oppose it in practice, even if we can speculate about it in theory.”  In other words, Msgr. Swetland’s contention appears to be that what Cardinal Ratzinger was saying in 2004 was merely that Catholics can disagree about whether capital punishment is intrinsically evil, but that the Cardinal was not denying that Catholics have to oppose it in practice.

But there are several reasons why this cannot be what Cardinal Ratzinger meant.  Indeed, the monsignor’s reading is, frankly, absurd. 

First, Ratzinger explicitly says that a Catholic may be “at odds with the Holy Father on the application of capital punishment,” that “it may still be permissible… to have recourse to capital punishment,” and that “there may be a legitimate diversity of opinion even among Catholics about… applying the death penalty.”  He is talking precisely about practice, not theory.  

Second, Msgr. Swetland’s interpretation cannot possibly make sense of Ratzinger’s statement that a Catholic may be “at odds with the Holy Father” on this subject.  Pope John Paul II never said that capital punishment is intrinsically evil.  On the contrary, he explicitly taught that it is not intrinsically evil.  So, what Catholics who support capital punishment may legitimately be “at odds with” the pope about is not the question of whether capital punishment is intrinsically evil, since the pope never said that.  The only thing left for them to be legitimately “at odds with” the pope about is whether capital punishment is advisable in practice – precisely what Msgr. Swetland falsely says Catholics cannot disagree about.

Third, Cardinal Ratzinger’s statement that “it may still be permissible… to have recourse to capital punishment” is flatly incompatible with the claim that capital punishment is intrinsically wrong.  It is quite ridiculous, then, for the monsignor to suggest that what Ratzinger is saying is that Catholics can disagree about whether capital punishment is intrinsically evil.  His remarks in fact rule out the opinion that it is intrinsically evil!

Fourth, the context of Ratzinger’s 2004 statement was a presidential election in which there was public controversy over whether Catholic politicians who support abortion should be denied Holy Communion, whether Catholics who vote for candidates favoring capital punishment are comparable to Catholics who vote for candidates favoring abortion, whether voting for a candidate who supports abortion is formally cooperating in evil, etc.  In other words, what was at issue was precisely the attitude Catholics ought to take toward certain actual practical policies, not abstract theoretical questions. 

Since Msgr. Swetland puts emphasis on what the U.S. bishops, specifically, have said, it is also worth noting that a 2004 document put out by the United States Conference of Catholic Bishops and written by Archbishop William Levada (later to become Prefect of the CDF himself) repeats almost exactly the language of Cardinal Ratzinger’s remarks about the legitimate diversity of opinion on the matter of capital punishment. 

In short, both the CDF and the USCCB have explicitly rejected Msgr. Swetland’s opinion that Catholics are obligated to oppose capital punishment in practice.

Some other bad arguments

Finally, let me address briefly some other remarks made by Msgr. Swetland during our debate.  The monsignor suggested that the fact that the governments of Saudi Arabia, Iran, North Korea, Egypt, China, and other disreputable regimes apply capital punishment should make us wary of U.S. support for the practice. 

But this is just silly.  You might as well argue that opposition to abortion and “same-sex marriage” is suspect, on the grounds that such opposition is strongest in countries dominated by Islamists.  Now, Msgr. Swetland is, of course, opposed to abortion and “same-sex marriage.”  He would no doubt say, correctly, that Catholics should remain opposed to these things whether or not this puts them in some bad company.  But Catholics who favor capital punishment can say exactly the same thing.  That some bad regimes uphold capital punishment doesn’t show that there is anything wrong with capital punishment, any more than the fact that some of the same regimes oppose abortion and “same-sex marriage” shows that it is bad to oppose abortion and “same-sex marriage.”

In reply to the examples I gave of ways in which capital punishment deters certain kinds of murder, Msgr. Swetland alleged that this sort of argument would require extending the death penalty further and further until even petty theft is punishable by death.

But this objection is ridiculous.  Is the monsignor saying that my position would as a matter of logical consistency require the execution of thieves?  That is simply not the case.  As Joe and I explain in the book, considerations of deterrence apply only after it has already been determined that a punishment is proportionate in its severity to the gravity of the offense.  But capital punishment is not proportionate to the crime of petty theft.  Hence it is ruled out from the get go, whether or not it would deter such theft.

Is the monsignor claiming instead merely that maintaining capital punishment will tend as a matter of contingent, sociological fact to lead to execution even for minor offenses?  If so, then the claim is manifestly false, and the argument a textbook example of the slippery slope fallacy.  Msgr. Swetland cites no causal mechanism – for example, no account of any sort of legal process or political developments – by which the execution of murderers will lead a society to start executing for petty theft and the like.  Furthermore, many states in the U.S. have had capital punishment for decades or even centuries, and it has not led to the draconian applications the monsignor claims must follow.

Finally, I want to address the following remark Msgr. Swetland made during our exchange:

I find no imprimatur on this book and it is not Catholic teaching.  You think it’s Catholic teaching but you didn’t bother to get an imprimatur, for good reason, no one would give you one, because it isn’t what the Church teaches.

End quote.  Now, there are two problems with this statement.  First, whether to get an imprimatur for the book was the publisher’s decision, and their general practice is not to seek an imprimatur except where canon law requires one.  Since our book does not require one, the publisher did not seek one.  That’s all.  It was not a matter of trying to get an imprimatur and failing. 

Second, the monsignor’s remark here is quite hypocritical.  As I mentioned above, Msgr. Swetland contributed to an anthology on the subject of Catholicism and capital punishment, and he also relies on Brugger’s book on the subject.  But neither of those books has an imprimatur either!  So, if the monsignor does not take the absence of an imprimatur to be problematic in the case of these other books, he cannot consistently pretend that it is problematic in the case of mine.

In summary, then, Msgr. Swetland:

-endorses a positon (to the effect that capital punishment is intrinsically evil) that cannot be reconciled with scripture, the Fathers and Doctors of the Church, and the teaching of the popes, and which is therefore heterodox

-repeatedly declined to say whether or not he thinks scripture has taught moral error

-persistently ignored the crucial distinctions between development versus reversal of doctrine, scripture’s permitting something versus its positively commanding something, and changes in moral principle versus mere changes in prudential application of principle

-seriously misrepresents what Cardinal Ratzinger stated in his 2004 memorandum

-commits several other blatant fallacies.

I don’t want to be too hard on Msgr. Swetland.  I don’t for a moment believe that he is deliberately misrepresenting or denying Catholic teaching.  I believe that he is sincere and well-meaning.  But I also believe that he is seriously confused, and that he is also sometimes unjust and uncharitable toward faithful Catholics who disagree with him.  I also believe it is important, for the good of the Church, to call attention to the grave deficiencies in arguments like the ones he has given.  When even a professional moral theologian who intends to be faithful to the Church presents arguments of such poor quality, it should be obvious that the pendulum has swung too far in the direction of abolitionism.  Churchmen and other Catholics have for too long been relying on sentimentality and simple-minded slogans, and ignoring the vast wealth of scriptural, theological, philosophical, and social scientific arguments that support capital punishment.  Part of the reason Joe and I wrote our book is to contribute to correcting this imbalance, and fostering a more sober and theologically responsible debate.