Fastiggi on Capital Punishment and the Change to the Catechism, Part II

In 2018, Pope Francis authorized a revision of the Catechism of the Catholic Church, which now states that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.”  This might be read as implying that capital punishment is intrinsically wrong, which would contradict scripture and two thousand years of magisterial teaching.  As a result, the change has been criticized as at least badly formulated.  In a recent four-part series at Where Peter Is, theologian Robert Fastiggi criticizes the critics of the revision.  The first part of my response to Fastiggi addressed what he has to say about the obligations of Catholics vis-à-vis the Magisterium of the Church.  In this second part, I will address what he says about the teaching of scripture, the Fathers, and previous popes on the topic of capital punishment.

In our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment, Joseph Bessette and I assemble a mountain of evidence from scripture, the Fathers and Doctors of the Church, two millennia of consistent papal teaching, and Catholic moral theology, in defense of the conclusion that the Church has taught irreformably that the death penalty can in principle be morally licit.  In a follow-up article at Catholic World Report, I have also explained the conditions under which the ordinary Magisterium of the Church teaches infallibly, and have shown that the teaching that capital punishment is not intrinsically immoral meets these conditions.  In our book, Bessette and I also set out at length the social scientific arguments supporting the conclusion that keeping the death penalty on the books for the most heinous crimes is necessary for public safety.

One of the frustrating things about Fastiggi’s series is that he leaves much of our argumentation unaddressed.  Furthermore, many of the objections he does raise are ones I have already rebutted elsewhere – including in my previous exchanges with him – yet he does not acknowledge, much less answer, the responses I have already given.  Yet Fastiggi’s series nevertheless gives the false appearance of comprehensiveness, in part because of its sheer length, but also because he will sometimes belabor trivial points.  For example, as we will see below, he tries vainly to read momentous significance into a passing allusion Pope Benedict XVI makes to Genesis 9:6 in an obscure speech on a topic unrelated to capital punishment.  Meanwhile, major problems for Fastiggi’s position go unaddressed.  Many readers of a site like Where Peter Is will not only not have read our book, but are highly unlikely to follow up their reading of Fastiggi’s articles with a look at our book to see if Fastiggi has represented it accurately, or if he really has answered all the difficulties facing the abolitionist case.

Yet another problem is that Fastiggi does not always carefully distinguish the issue of whether capital punishment is intrinsically wrong from the issue of whether it is merely better in practice not to inflict it.  For example, he will often cite some critical remark that a Church Father or pope makes about capital punishment, as if it were damaging to the case Bessette and I make.  But typically these are passages we have already addressed in our book.  And typically they are passages that would be damaging to our position only if they asserted that capital punishment is intrinsically wrong, and they do not in fact do that.  When the issues are disambiguated and formulated precisely, the passages in question do not have the force Fastiggi seems to think they have.  Problematic ambiguities like this crop up again and again in Fastiggi’s discussion.

All of this makes it harder for me to avoid a verbose response.  So, as I did in part I of this series, I apologize in advance for the length of what follows.

Scripture and the Church Fathers

As Fastiggi notes, the Council of Trent teaches that “no one may dare to interpret the Scripture in a way contrary to the unanimous consensus of the Fathers.”  But as Bessette and I show at pp. 111-118 of our book, the Fathers of the Church are unanimous in teaching that scripture allows for capital punishment at least in principle.  Fastiggi disputes this, writing:

This position, though, has been rejected by Pope Francis in his October 3, 2020 encyclical, Fratelli Tutti, no. 265, when he correctly notes: “From the earliest centuries of the Church, some were clearly opposed to capital punishment,” and he cites Lactantius (240–320), Pope Nicholas I (c. 820–867), and Augustine (354–430) as examples.

But the problem with Fastiggi’s argument here is that we need to distinguish (a) the claim that capital punishment is wrong intrinsically, or of its very nature, from (b) the claim that while it is not intrinsically wrong, it is still better not to use it.  As Bessette and I acknowledge, some of the Fathers, including the ones Fastiggi mentions, do endorse claim (b), though there are also many Fathers who reject it.  But what is in question is whether any of the Fathers endorse claim (a).  And in fact, as Bessette and I demonstrate in our book, none of them endorses that claim, and Pope Francis does not say that they do.  Indeed, even E. Christian Brugger, who is not only opposed to capital punishment but would like the Church to go as far as condemning it as intrinsically immoral, admits that there is what he calls a “patristic consensus” on the thesis that capital punishment is legitimate at least in principle, even among those who opposed resorting to it in practice (Capital Punishment and Roman Catholic Moral Tradition, p. 95).

In part 2 of his series, Fastiggi tries to make a big deal of the fact that Pope Nicholas I was opposed to capital punishment – something Bessette and I explicitly acknowledge in our book.  But Nicholas does not condemn it as intrinsically evil.  Fastiggi also suggests that Tertullian, Cyprian, and Lactantius are exceptions to the patristic consensus.  But he ignores quotes Bessette and I give in our book that show otherwise.  For example, in A Treatise on the Soul, Tertullian says that “we do not account those to be violent deaths which justice awards, that avenger of violence.”  Lactantius, in The Divine Institutes, acknowledges that a man can be “justly condemned to [be] slain.”  In Ad Demetrianum, Cyprian indicates that if Christianity really were a crime, the state would justly “put the man that confesses it to death.”  These Fathers did indeed nevertheless oppose the use of the death penalty in practice, but they do not teach that it is intrinsically wrong.  Not only Brugger, but also James Megivern, another prominent Catholic opponent of capital punishment, acknowledge that the stronger thesis cannot be attributed to these three Fathers (Megivern, The Death Penalty: A Historical and Theological Survey, pp. 22-26).

It illustrates how desperate Fastiggi is to get around this difficulty that he even alludes in passing to David Bentley Hart’s criticism of By Man Shall His Blood Be Shed as evidence that Bessette and I have somehow gotten the Fathers wrong (though Fastiggi doesn’t explain how).  The first problem here is that it is not hard to show that Hart’s review was a dishonest hatchet job, as I demonstrated when responding to it here and here.  The second problem is that it is very odd for an orthodox Catholic like Fastiggi to look to Hart, of all people, for sound exegesis.  Hart is not Catholic and rejects Catholic norms for interpreting scripture and the Fathers.  Indeed, his view of scripture is so far from a Catholic one that he is given to making remarks like this:

Most of the Hebrew Bible is a polytheistic gallimaufry, and YHVH is a figure in a shifting pantheon of elohim or deities… [In] most of the Old Testament he is of course presented as quite evil: a blood-drenched, cruel, war-making, genocidal, irascible, murderous, jealous storm-god.  Neither he nor his rival or king or father or equal or alter ego… is a good god.  Each is a psychologically limited mythic figure from a rich but violent ancient Near Eastern culture…

[The heretic] Marcion of Sinope… exhibited far greater insight than modern fundamentalists… in that he recognized that the god described in the Hebrew Bible – if taken in the mythic terms provided there – is something of a monster and hence obviously not the Christian God. 

Hart is also well-known for trying to reinterpret scripture so as to make it compatible with universalism, which, from a Catholic point of view, is a heresy.  This is the exegete Fastiggi wants Catholics to trust to interpret scripture and the Fathers on capital punishment? 

A third problem is that Hart himself has conceded that “it is perhaps easier for me as an Orthodox Christian than it is for a Catholic to dismiss Feser’s arguments.”  For some reason, Catholics who cite Hart against me never quote this remark.

Genesis and the death penalty

Genesis 9:6 famously states: “Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.”  This passage has for millennia been understood by Catholic and Jewish commentators as sanctioning the death penalty, and as Bessette and I show at pp. 99-101 of our book, there is no plausible alternative way of reading it.  In De Laicis, Chapter 13, St. Robert Bellarmine considers and rejects the claim that Genesis 9:6 is merely a prediction about what will happen to murderers, rather than a decree about what should happen to them.  Among the points he makes is that such a reinterpretation is contrary to the traditional Jewish understanding of the passage.  He points out that in the Targums, the passage is paraphrased as: “Whoever sheds men’s blood before witnesses, by sentence of a judge his blood should be shed” (emphasis added).  Bellarmine concludes that Genesis 9:6 “must be taken as an order and a precept.”  Even Brugger admits that attempts to reinterpret the passage are hard to defend, and concedes that it remains a “problem” for his radical abolitionist position (Capital Punishment and Roman Catholic Moral Tradition, p. 73).

Yet Fastiggi claims otherwise.  He writes:

This Scripture… can actually be used against the death penalty since the death penalty involves killing.  In fact, Benedict XVI, in his 2012 Post-Synodal Exhortation, Ecclesia in Medio Oriente, n. 26 cites Genesis 9:6 as evidence that God forbids the killing of even those who commit murder: “God wants life, not death. He forbids all killing, even of those who kill (cf. Gen 4:15-16; 9:5-6; Ex 20:13).”  In Fratelli Tutti, 270, Pope Francis cites Gen 9:6 in his section against the death penalty for this Scripture stands as a warning to “those tempted to yield to violence in any form.”

But this line of argument is problematic in several ways.  First, Pope Benedict’s exhortation was not addressing the subject of capital punishment.  As the reader can easily verify by looking at the text, the context in which he made the remark in question was a discussion of the idea of religious toleration.  What the pope was saying is that the attempt to coerce others into adopting one’s own religious point of view sometimes results in violence and even killing, and that God does not approve of this.  The pope was not even addressing the topic of criminal justice, let alone the question of what sorts of punishments are appropriate for which crimes.

Now, it is standard methodology when interpreting papal texts to take such context into account, and to be very cautious about extrapolating momentous implications about a particular subject from papal remarks made in passing in a discourse devoted to a completely different subject.  Fastiggi violates this methodological principle by insinuating that Benedict’s remark implies some radical reinterpretation of Genesis 9:6 and, by implication, some revolutionary teaching vis-à-vis capital punishment.

Second, it is in any event highly misleading to imply, as Fastiggi does, that Benedict was “cit[ing] Genesis 9:6 as evidence that God forbids the killing of even those who commit murder.”  For one thing, the pope does not pinpoint Genesis 9:6 specifically and then make an explicit comment about how to interpret it.  Rather, he simply includes it in a string of scriptural references that are implied to have some bearing – exactly what bearing, in the case of any of the individual Scriptural passages, is not specified – on God’s will vis-à-vis killing.  Benedict never explicitly makes, concerning Genesis 9:6, the claim that Fastiggi attributes to him.

For another thing, it is quite ridiculous on its face to suggest that Genesis 9:6 teaches that “God forbids the killing of even those who commit murder.”  Again, this passage has for millennia consistently been understood by Catholic and Jewish exegetes to be teaching the opposite.  Even modern liberal exegetes who have tried to reinterpret it have only ever claimed that the passage is neutral about capital punishment, and they have had to strain credulity to go even that far (as, again, even Brugger concedes).  To suggest, as Fastiggi does, that the passage is actually condemning capital punishment, is to imply that Jewish and Christian exegetes, traditional and liberal alike, have all been misreading it for millennia, and that its true import was revealed only a few years ago in a passing and oblique reference in a minor papal exhortation addressing an unrelated topic.  With all due respect to Fastiggi, this doesn’t pass the laugh test.

Nor is it remotely plausible to attribute such an interpretation to Pope Benedict XVI, of all people.  Benedict’s program was, famously, a “hermeneutic of continuity” that eschewed rupture with traditional Catholic teaching.  It is absurd to propose that he intended radically to subvert the traditional reading of Genesis 9:6, and with it the Church’s perennial teaching that the death penalty is not intrinsically immoral.  It is doubly absurd to suppose that he would do so in a way that was so extremely subtle and inexplicit that no one even knew about it until Fastiggi drew our attention to it.  Moreover, while head of the CDF, then-Cardinal Ratzinger stated in a 2004 memorandum 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 could not have said such things if he believed that Genesis 9:6 absolutely forbade the execution of murderers.  Once again manifesting a degree of intellectual honesty that too many Catholic opponents of capital punishment lack, Brugger acknowledges in the second edition of his book that in reality, Benedict XVI was “inclined to accentuate the continuity that exists between the tradition and the moves of his predecessor” vis-à-vis capital punishment, rather than to take John Paul II’s teaching in a more radically abolitionist direction (p. xx).

To come to Fratelli Tutti, it is true that, in the context of criticizing the death penalty, Pope Francis includes Genesis 9:6 in a list of passages that he says warn of the consequences of violence.  But he is not addressing, much less answering, exegetical questions about the precise meaning of the passage.  And Pope Francis’s habit of speaking with imprecision should make any responsible theologian wary of drawing momentous theological conclusions about some topic from remarks of his that are not directly aimed at that topic.

Consider, for example, Francis’s remark in Evangelii Gaudium that “the first and the greatest of the commandments, and the one that best identifies us as Christ’s disciples [is]: ‘This is my commandment, that you love one another as I have loved you.’”  What scripture actually says, of course, is:

When the Pharisees heard that he had silenced the Sadducees, they gathered together, and one of them tested him by asking, “Teacher, which commandment in the law is the greatest?” He said to him, “You shall love the Lord, your God, with all your heart, with all your soul, and with all your mind.  This is the greatest and the first commandment.” (Matthew 22: 34-38)

Should we conclude that we have somehow been misunderstanding Matthew 22 for two millennia, and that Francis has at last revealed what Christ actually taught is the first and greatest commandment?  That would, of course, be absurd.  Quite obviously, the pope’s remark is simply mistaken, and he was not speaking precisely.  That would be enough of a reason to refrain from drawing some revisionary theological conclusion from his remark, but it is reinforced by the fact that he was not explicitly trying to settle a matter of scriptural exegesis in the first place.

The same thing is true of the remark in Fratelli Tutti.  The pope simply gathers scriptural texts to illustrate the idea that violence has bad consequences.  He does not say that his aim is to settle any exegetical controversy about the proper interpretation of Genesis 9:6.

The Mosaic Law versus the Gospel?

Fastiggi points out in part 1 of his series that the Old Testament permitted slavery and polygamy, and that God even enabled the latter in the case of King David.  Yet the Church has nevertheless rightly forbidden these things.  He suggests that the case of capital punishment is similar.  Even though the Old Testament allowed it, the Church can and should forbid it now in an absolute way.

But this is a false analogy.  The first problem with it is that the Old Testament merely permits, but does not require, slavery and polygamy.  The Israelites are not told that they must take slaves or marry more than one woman.  They are told at most only that if they do these things, then there are certain conditions they must follow.  By contrast, the use of the death penalty is positively commanded many times in the Old Testament.  Moreover, these commands are not ad hoc in nature, directed to some specific temporary purpose (as are divine directives to the Israelites to destroy this or that pagan city, say).  Rather, the Mosaic Law makes the death penalty a standing and normal part of the everyday life of the nation of Israel.

Hence, if capital punishment were intrinsically or of its very nature “an attack on the inviolability and dignity of the person,” we would be left with the conclusion that scripture not only permitted, but positively commanded the Israelites to set up the very structure of their society in a manner that was inherently and gravely contrary to the good of human beings.  We would be left with the conclusion that scripture thereby led the Israelites into grave moral error.  But that is not possible given the Church’s doctrine that scripture cannot teach moral error.

Perhaps Fastiggi would acknowledge that it was not wrong for the Israelites to make use of capital punishment, but hold that it is nevertheless wrong to make use of it under the New Covenant, given the higher moral demands of the Gospel.  Now, one problem with this is that the New Testament, too, explicitly affirms the legitimacy of the death penalty in some cases.  For example, as Bellarmine pointed out, the deaths of Ananias and Sapphira in the Acts of the Apostles are essentially divine executions carried out at the behest of St. Peter.  In other words, the first pope not only approved of capital punishment, but inflicted it himself.  (I have discussed and defended Bellarmine’s interpretation of this passage in an another article.)

Romans 13:4 famously teaches that the governing authority “does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer.”  This has for two thousand years been understood by Catholic theologians to affirm the legitimacy of capital punishment.  Church Fathers such as Tertullian, Origen, Ambrose, and Augustine read it this way, as do Doctors of the Church like Aquinas and Bellarmine.  Even Brugger admits that there was a patristic and medieval “consensus” on this as the correct reading (Capital Punishment and Roman Catholic Moral Tradition, p. 112).

Fastiggi makes a passing reference to a speech from Pope Pius XII that alludes to Romans 13:4, and suggests that Pius somehow distanced himself from the traditional interpretation.  Fastiggi doesn’t explain exactly how – nor could he have, since Pius says no such thing in that passage.  Indeed, Pius isn’t even addressing the topic of capital punishment at all in the passage.  And in fact, as is well known, when Pius XII did discuss capital punishment, he clearly and firmly endorsed it.  (Fastiggi is likely borrowing here from John Finnis, who has vainly tried to make hay out of this passage from Pius XII.  I refuted Finnis’s flimsy arguments at length here and here.)

Bessette and I address Romans 13:4 and other relevant New Testament passages at length at pp. 103-111 of our book.  I also address attempts to reinterpret Romans 13:4 in my response to Hart, linked to above.  Fastiggi offers no response to most of what we say.

But there is yet another problem with Fastiggi’s suggestion that capital punishment, while permissible in Old Testament times, is immoral given the higher demands of the Gospel.  The problem is that the Church for two millennia has taught the contrary.  Indeed, on several occasions the Magisterium directly addressed this thesis and explicitly rejected it.  For example, in 405, a bishop inquired with Pope St. Innocent I about whether civil authorities had to refrain from using capital punishment after converting to Christianity.  The pope answered in the negative, appealing to Romans 13 and suggesting that to forbid capital punishment would “overturn sound order… [and] go against the authority of the Lord.” 

In response to this, Fastiggi notes that Innocent begins his response to the bishop with the remark that “about these matters we read nothing definitive from the forefathers,” and suggests that this somehow poses a problem for those who would appeal to Pope Innocent in defense of capital punishment.  But there are two problems with Fastiggi’s claim, whatever the significance of Innocent’s remark (which isn’t obvious).  First, Fastiggi leaves out what Innocent immediately says next:

For they [the forefathers] had remembered that these powers had been granted by God and that for the sake of punishing harm-doers the sword had been allowed; in this way a minister of God, an avenger, has been given.  How therefore would they criticize something which they see to have been granted through the authority of God?

Needless to say, that is pretty definitive.  Innocent says that the power of execution was granted to the state by God, and that precisely for that reason, the forefathers would not criticize the death penalty.  Second, whatever the forefathers had to say, what matters is that Pope Innocent I’s remark is itself definitive.  For whatever the forefathers thought, he, as pope, was being asked to make an authoritative decision by a bishop who wasn’t sure what to think.  And his response isn’t to waver, but on the contrary, firmly to declare that to condemn capital punishment as inherently wrong would be “to go against the authority of the Lord.”

But there is further papal teaching along these lines.  For instance, in 1210, Pope Innocent III not only rejected the claim of the Waldensian heretics that Christians could not resort to capital punishment, but made repudiation of this thesis a condition of their reunion with the Church.  Fastiggi alleges that in insisting that the death penalty could be inflicted “without mortal sin,” Pope Innocent was merely making a point about the subjective culpability of public officials rather than the moral character of the act of execution itself.  But Bessette and I answered this sort of dodge in our book (at pp. 124-125).  The statement that Innocent required the Waldensians to assent to reads, in full, as follows:

We declare that the secular power can without mortal sin impose a judgment of blood provided the punishment is carried out not in hatred but with good judgment, not inconsiderately, but after mature deliberation.

Furthermore, in an earlier letter to a Waldensian leader, Pope Innocent wrote:

Let none of you presume to assert the following: that the secular power cannot carry out a judgment of blood without mortal sin.  This is an error because the law, not the judge, puts to death so long as the punishment is imposed, not in hatred, nor rashly, but with deliberation.

Notice that the pope is not saying merely that a person might not be culpable for sin when inflicting the death penalty – as if inflicting it might still be intrinsically wrong, and it’s just that the executioner doesn’t know any better, or acts under the influence of strong emotion, and thus doesn’t meet the conditions for mortal sin.  No, the pope says instead that even when acting with “good judgment,” “mature deliberation,” “not in hatred, nor rashly,” etc. one can in that case be blameless in inflicting the death penalty.  And he says that “the law” itself requires this, not the fallible judgment of the individual.  Once again, even Brugger admits that those who share his abolitionism do not have a strong case here, and that Pope Innocent did indeed intend to teach that capital punishment itself is licit, not merely that those who inflict it might lack subjective culpability (Capital Punishment and Roman Catholic Moral Tradition, p. 107).

Yet another relevant papal statement is Pope Leo X’s condemnation of Luther’s thesis that the execution of heretics is against the divine will.  Then there is Pope St. Pius V’s promulgation of the Roman Catechism, which was, naturally, intended as a guide to living according to the principles of the Gospel, and directed to the Church universally rather than merely addressing some specific and contingent set of circumstances.  This catechism enthusiastically endorses capital punishment for murderers, saying that “the just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder.”  In the twentieth century, Pope Pius XII taught that “it is reserved… to the public authority to deprive the criminal of the benefit of life when already, by his crime, he has deprived himself of the right to live.”

In our book, Bessette and I discuss these and other relevant papal statements on the subject of capital punishment at length.  Now, if capital punishment really were inherently contrary to the demands of the Gospel, we would have to say that the Church has for two millennia consistently and gravely misled the faithful on a matter of fundamental moral importance.  We would have to say that when directly addressing the question of whether the Gospel rules out capital punishment, popes Innocent I, Innocent III, and Leo X all got it wrong.  Indeed, we would have to say that the heretics whom Innocent III and Leo X were criticizing were right, and the popes were wrong.

This is Fastiggi’s idea of upholding the authority of the Magisterium?!  Which is more likely to reinforce the Church’s credibility?  The view that scripture and two millennia of magisterial teaching were right, and that Pope Francis’s revision to the Catechism is badly formulated and should be revisited in order to make it more clearly consistent with the tradition?  Or the view that the Church has gotten things wrong for two millennia, and that only Pope Francis has somehow finally seen the truth?  To ask these questions is to answer them.

There is a further irony here.  Commenting on Pope Innocent I’s affirmation of the legitimacy of the death penalty, Fastiggi claims that Innocent also allowed “torture,” and suggests that this should lead us to reject what he says about capital punishment.  One problem with this is that Fastiggi does not explain why the word he translates as “torture” should be understood to refer to torments intended to break the will (which would be torture, and immoral) as opposed to lesser corporal punishments (which would not be). 

But leaving that aside, it is odd that Fastiggi, in order to defend one pope (Francis) against the charge of error, accuses another pope (Innocent) of error!  If he is going to suggest that Innocent erred, then how can he consistently object to those who suggest that Francis has erred?  Moreover, the cases are not parallel, because there is a clear and consistent tradition, from scripture through two thousand years of magisterial teaching, in favor of the legitimacy in principle of capital punishment.  But there is no such tradition with respect to torture.  Hence, if Innocent can be wrong about torture, then, a fortiori, Francis can be wrong about capital punishment.  Fastiggi thinks that his point about Pope Innocent helps his case, but in fact it hurts his case.

The Ratzinger memorandum

During the 2004 U.S. presidential election, the question whether Catholic politicians who support abortion or euthanasia should be denied Holy Communion became a hot button issue.  Some suggested that if these politicians were denied Communion, then Catholic politicians who supported capital punishment or the Iraq War should be denied it as well.

To clarify the matter, Cardinal Ratzinger, who was then Prefect of the Congregation for the Doctrine of the Faith, sent a memorandum titled “Worthiness to Receive Holy Communion: General Principles” (which I briefly referred to above) to then-Cardinal Theodore McCarrick, who was at the time the archbishop of Washington, D.C.  (McCarrick has, of course, since been disgraced and defrocked, though that is irrelevant to the present issue.)  Ratzinger noted that the cases are not at all parallel, writing:

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.

Notice several things about this teaching.  As is well known, Pope St. John Paul II held that the cases where capital punishment is necessary to protect society are “very rare, if not practically nonexistent” (as the 1997 version of the Catechism puts it).  Indeed, the pope made even stronger statements at other times, calling the death penalty “cruel and unnecessary” and calling for its outright abolition.  All the same, Ratzinger acknowledged that “there may be a legitimate diversity of opinion even among Catholics about… applying the death penalty,” and indeed that a Catholic in good standing could even be “at odds with the Holy Father” on the subject.  He could not have said that if assent to the pope’s position was obligatory.  And notice that this is true even though the pope’s prudential judgment concerned a matter of grave moral importance, and was put forward publicly, repeatedly, and in stern moralistic terms.

Note also the reference to “civil authorities,” and how war and recourse to capital punishment can in some cases be permissible despite the fact that the Church urges such authorities to seek peace and exercise mercy on criminals.  The clear implication is that it is ultimately civil authorities who have the responsibility to make a prudential judgment about whether capital punishment is necessary, just as they have the responsibility to determine whether war is necessary.

Some have claimed that the memorandum merely reflects Cardinal Ratzinger’s personal opinion as a private theologian.  But this is clearly not the case.  Ratzinger was writing, not as a private theologian, but precisely in his official capacity as Prefect for the Congregation of the Doctrine of the Faith.  And he was writing to a fellow bishop precisely to clarify for him a matter of Church doctrine and discipline.

Furthermore, the passage from the memo quoted above was incorporated almost verbatim into a USCCB document written by Archbishop William Levada (who would later succeed Ratzinger as head of CDF).  The purpose of this document was precisely to clarify for Catholics the same issues Ratzinger aimed to clarify in his memo.  And the fact that a USCCB document incorporates the passage in question obviously indicates that it has doctrinal weight, and is not merely Ratzinger’s personal opinion.  It is worth adding that even Brugger acknowledges, in the second edition of his book, that the memo was written by Ratzinger “as prefect of the CDF” (Capital Punishment and Roman Catholic Moral Tradition, p. xxviii).

Now, keep in mind that as head of CDF, Ratzinger’s job was to be Pope St. John Paul II’s doctrinal spokesman.  Hence he was an authoritative interpreter of the pope’s teaching on the issue of capital punishment.  Since he explicitly said that there could be “a legitimate diversity of opinion” about the matter even among faithful Catholics – and indeed, that faithful Catholics could even be “at odds with” the pope on the matter – it follows that Pope John Paul II’s position that capital punishment is no longer needed was not something Catholics are obligated to agree with.

How is this relevant to Pope Francis’s revision of the Catechism?  The main difference between John Paul’s teaching and Francis’s teaching is that the former allowed that there may still be rare cases where capital punishment is needed in order to protect society, whereas the latter denies that.  Even Francis’s appeal to the “dignity of the person” is not novel, because Pope John Paul II made the same appeal when criticizing capital punishment.  For example, the 1997 edition of the Catechism says that non-lethal means of dealing with offenders are preferable because they are “more in conformity with the dignity of the human person.”

Now, John Paul II’s view that the cases where capital punishment is still needed to protect society are “very rare, if not practically nonexistent” was of its very nature a prudential judgment concerning matters of social science, law, criminology, etc. about which popes have no special expertise.  For that reason, as Cardinal Ratzinger made clear, Catholics were not obligated to agree with that judgment.  But Francis’s view that non-lethal means are in every case sufficient to “ensure the due protection” of society is also, of its very nature, a prudential judgment concerning matters of social science, law, criminology, etc. about which popes have no special expertise.  So, how can Catholics be obligated to assent to the latter view any more than they were obligated to assent to the former?  What the Ratzinger memorandum says about John Paul’s teaching applies mutatis mutandis to Francis’s teaching.

In part 3 of his series, Fastiggi responds to those who argue that the Ratzinger memorandum supports the view that papal opposition to capital punishment amounts to a prudential judgement with which Catholics are not obligated to agree.  Fastiggi concedes that “perhaps that argument could have been used prior to the 2018 revision” to the Catechism.  However, he says, “it cannot be used now” because “that memorandum has been superseded by the change” to the Catechism, along with the CDF’s explanation of the change.  For one thing, says Fastiggi, “the revised text of the [Catechism] articulates a moral judgment that is not merely prudential.”  For another thing, the Ratzinger memorandum was in any case “never intended for publication, as Cardinal Ladaria [then prefect of the CDF] has explained” but was “just a private communication to some bishops.”

Fastiggi supposes, then, that both the nature of the 2018 revision to the Catechism and Cardinal Ladaria’s comments about the 2004 Ratzinger memorandum render that memorandum moot and undermine any argument based on it.  But both of these suppositions are false. 

First, it is easy to show that the revision to the Catechism, no less than John Paul II’s statements on capital punishment, does reflect merely prudential considerations.  For the revised text appeals not only to human dignity, but also to the assumption that “more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.”  Similarly, in his letter to the bishops explaining the change to the Catechism, Cardinal Ladaria says that part of the reason for the change has to do with “the development of more efficacious detention systems that guarantee the due protection of citizens,” with worries about “the defective selectivity of the criminal justice system and… the possibility of judicial error,” with the judgment that “modern society possesses more efficient detention systems, [so that] the death penalty becomes unnecessary as protection for the life of innocent people,” and so on. 

These are statements concerning matters of empirical fact about which churchmen have no more expertise than they have about stamp collecting, electrical engineering, or gardening.  They are inherently prudential rather than doctrinal or moral in nature.  And if these prudential judgments are mistaken (and in our book, Bessette and I argue that they are mistaken), then the justification for the conclusion that the death penalty ought entirely to be abolished is thereby undermined. 

It is also worth noting that Ladaria’s letter urges civil authorities “to encourage the creation of conditions that allow for the elimination of the death penalty where it is still in effect” (emphasis added).  That implies that it may not in fact practically be possible to eliminate capital punishment everywhere.  And it therefore implies in turn that abolishing capital punishment is not in fact an imperative that follows from moral principle alone, but rather follows only when empirical conditions allow for it.  But whether such conditions allow for it is, in the nature of the case, a prudential matter.

All things considered, then, while the rhetoric of the revision to the Catechism is certainly stronger than that of John Paul II, the actual substance of the teaching is essentially the same.  Hence, as I argued above, if the 2004 Ratzinger memorandum applied to John Paul II’s version of the Catechism, then why would it not apply as well to Francis’s version?

Nor, contrary to what Fastiggi seems to think, do Cardinal Ladaria’s comments about the Ratzinger memorandum show otherwise.  These comments were made in a 2021 letter to Archbishop Gomez concerning the USCCB’s intention of drafting guidelines for dealing with “Catholics in public office who support legislation allowing abortion, euthanasia, or other moral evils” yet want to receive Holy Communion.  Because the 2004 Ratzinger memorandum addressed precisely this issue, it comes up in the exchange between Gomez and Ladaria.  As Fastiggi says, Ladaria does indeed note that the memorandum “was not intended for publication” but “was a private communication addressed to the bishops” (and Ladaria says “the bishops” – not, contrary to what Fastiggi implies, “some bishops”).  

Now, contrary to what Fastiggi insinuates, the fact that Ratzinger’s memorandum was originally intended to be private is irrelevant to the issue at hand.  For one thing, the memorandum was still not merely the private opinion of Cardinal Ratzinger.  Again, it was an official act of the Prefect of the CDF, acting to clarify for the U.S. bishops the bearing of Catholic doctrine on a matter of current controversy.  The fact that the memorandum was meant for the eyes of the bishops rather than the general public doesn’t change that fact or somehow magically render it irrelevant to understanding John Paul II’s teaching on capital punishment.

Furthermore, Fastiggi fails to mention two crucial aspects of Ladaria’s letter to Gomez.  First, Ladaria does not say or in any way imply that the 2004 memorandum has been superseded or is otherwise irrelevant.   On the contrary, he tells Gomez that the principles set out by Ratzinger in the memorandum “may be of assistance in the preparation of the draft of your document”!  That is to say, far from telling Gomez and the U.S. bishops that they should now ignore the 2004 memorandum, he explicitly says that they may make use of it.

Second, Ladaria in no way qualifies this advice in light of the 2018 revision to the Catechism.  Indeed, the topic of capital punishment is not mentioned at all in Ladaria’s letter to Gomez.  If Fastiggi were correct, you would expect Ladaria to say that, in light of the revision, the U.S. bishops should no longer use Ratzinger’s 2004 memorandum, or at least no longer use the part of it that deals with capital punishment.  But not only does Ladaria not say that, he says that they may use the memorandum, while saying nothing at all about the topic of capital punishment.  That would be a remarkable omission if the 2004 memorandum’s teaching on capital punishment really were a dead letter in light of the 2018 revision to the Catechism. 

If anything, then, Ladaria’s 2021 letter supports rather than undermines the argument I’ve been defending.  Once again, what Fastiggi supposes helps his case actually hurts his case.

Odds and ends

As I have said, in a Catholic World Report article from some years back, I argue that the ordinary Magisterium of the Church has taught infallibly that capital punishment is not intrinsically wrong.  Fastiggi does not answer those arguments, but in support of the claim that this has not been infallibly taught, he directs his readers to two articles by Brugger at Public Discourse, here and here.  But I answered Brugger in my own series of articles at Public Discourse, here and here.  Fastiggi also commends to his readers two articles by Finnis, here and here.  But I answered Finnis too, here and here.  And Fastiggi calls his readers’ attention to two Catholic World Report articles wherein he has criticized my views, here and here.  But I have answered those articles as well, here and here.  I have also criticized Fastiggi’s views in two further articles, here and here.  I urge Fastiggi’s readers to remember that there are two sides to every debate, and that they should read and consider what I have actually said, and not only what Fastiggi, Brugger, Finnis, Hart, et al. claim I have said.

In part 4 of his series, Fastiggi asks, rhetorically: “Is fidelity to the death penalty more important than fidelity to the Magisterium?”  But this too attacks a straw man, because nobody claims in the first place that fidelity to the death penalty is more important than fidelity to the Magisterium.  In reality, the critics of the revision to the Catechism are no less loyal to the Magisterium than Fastiggi is.  But they insist that loyalty to the Magisterium involves more than loyalty to Pope Francis alone (even if it does, of course, involve that) – it involves loyalty to the consistent teaching of scripture, the Fathers and Doctors of the Church, and all previous popes.  And they insist too that loyalty to the Magisterium is perfectly consistent with the respectful criticism of problematic magisterial statements that the Magisterium itself acknowledges to be permissible in Donum Veritatis.  Fastiggi has every right to criticize the views of the critics of the revision.  But he has no right to pretend to be “more loyal than thou.”