Robert P. George on capital punishment (Updated)

Mark Shea and I have been debating Catholicism and capital punishment.  (See this post and this one for my side of the exchange and for links to Shea’s side of it.)  Shea has been talking to “new natural law” theorist Prof. Robert P. George about the subject.  He quotes Robbie saying the following:

In fact, the Church can and has changed its teaching on the death penalty, and it can and does (now) teach that it is intrinsically wrong (not merely prudentially inadvisable). Both John Paul II in Evangelium Vitae and the Catechism reject killing AS A PENALTY, i.e., as a punishment, i.e., for retributive reasons. Rightly or wrongly (I think rightly, but the teaching is not infallibly proposed—Professor Feser is right about that—nor was the teaching it replaces infallibly proposed) the Church now teaches that the only reason for which you can kill someone who has committed a heinous crime is for self-defense and the defense of innocent third parties. You can’t kill him AS A PUNISHMENT, even if he’s Hitler or Osama bin Laden, once you’ve got him effectively and permanently disabled from committing further heinous crimes. There is no other way to read Evangelium Vitae and the Catechism. The interesting debate, I think, is about the status of the earlier teaching and what kind of assent, if any, it demanded of faithful Catholics…

End quote.  This is a common interpretation of John Paul II’s teaching among those committed to the “new natural law” theory invented by Germain Grisez in the 1960s.  Joseph Bessette and I critique this and other aspects of the “new natural law” approach to capital punishment at length in our book By Man Shall His Blood Be Shed: A Catholic Defense of the Death Penalty, forthcoming from Ignatius Press.  For now let me briefly summarize some of the very serious problems with the view Robbie expresses.

First, it is at best extremely misleading (indeed, I would say simply false) to assert flatly that the Church “has changed its teaching” in the way described.  The very most that can be said is that some moral theologians claim that this is the right way to interpret John Paul II (mainly those moral theologians influenced by Grisez’s “new natural law” theory, which was independently heavily invested in the idea that capital punishment is intrinsically immoral long before Evangelium Vitae appeared).  There are many other prominent Catholic moral theologians who reject this interpretation, such as the late Cardinal Avery Dulles and Prof. Steven A. Long.

Second, a major difficulty for Robbie’s assertion is that then-Cardinal Ratzinger, speaking as head of the CDF and the Church’s chief doctrinal officer, explicitly denied that John Paul II had made any change to the Church’s teaching on capital punishment at the level of doctrinal principle (as opposed to prudential application of principle).  In a letter responding to an inquiry from Fr. Richard John Neuhaus about whether the teaching of Evangelium Vitae and the Catechism represented a doctrinal change, published in First Things in October of 1995, Ratzinger said:

Clearly, the Holy Father has not altered the doctrinal principles which pertain to this issue as they are presented in the Catechism, but has simply deepened the application of such principles in the context of present-day historical circumstances… In my statements during the presentation of the encyclical to the press, I sought to elucidate these elements, and noted the importance of taking such circumstantial considerations into account.  It is in this sense that the Catechism may be rewritten, naturally without any modification of the relevant doctrinal principles. (emphasis added)

That’s about as clear a rejection as there could be of the thesis that the teaching of Evangelium Vitae and the Catechism represents a change in doctrine rather than merely a change in prudential application of doctrine. 

Third, the thesis that Robbie (wrongly) attributes to John Paul II – that the execution of a criminal cannot be regarded any longer as a matter of penalty, punishment, or retributive justice, but instead only as a kind of defense – is extremely morally problematic.  If the pope really were saying that it is legitimate to execute someone merely because he poses a danger and that retributive justice has nothing to do with it, then this would in principle allow the killing even of the innocent.  For example, suppose someone is dangerous to others, not because he freely chooses to harm them, but because he has a severe mental illness and can’t control his violent impulses.  According to the thesis Robbie attributes to the pope, such a person could in principle be sentenced to death merely for the sake of keeping others safe.  But this is surely not what the pope intended to teach, and indeed it contradicts his explicit teaching that the innocent may never in principle be intentionally killed. 

(Those who oppose the very idea of retributive justice – the principle that an offender deserves a punishment proportionate to his crime – often fail to realize that this principle protects the innocent and much as it threatens the guilty.  The traditional case for capital punishment holds that only those who deserve death can be executed, not those who are innocent, including the mentally ill.  To reject the principle of retribution is implicitly to accept the principle that it is not what people deserve that should determine how we treat them, but rather some other criterion, such as consequentialism, that should do so.  It is thus the defenders of the retributivist view, and not its critics, who truly uphold human dignity.)

Now, the “new natural lawyers” also think the innocent may never intentionally be killed.  Indeed, they think that no one, not even the guilty, may ever intentionally be killed.  So, it might seem strange for them to attribute the thesis in question to the pope.  But there is a larger motivation here, because what the “new natural lawyers” want to be able to do is to argue that the teaching they attribute to the pope is really just a stepping stone on the way to the further conclusion that all execution, even as defense, is always and intrinsically wrong.  But the thesis that all intentional killing, even of those guilty of the worst crimes, is always and intrinsically wrong, was not John Paul II’s teaching and it is not the Church’s teaching.  It is merely Germain Grisez’s teaching, which his followers would like the Church to find a way to take on board. 

Fourth, the thesis that the execution of criminals is legitimate even in principle only as a matter of defense and never as a matter of punishment or retributive justice would not (contrary to what some Catholics falsely suppose) be a mere “development” of previous doctrine.  It would (as Cardinal Dulles pointed out) in fact be an outright reversal of previous doctrine, a contradiction of previous doctrine.  For scripture, the Church Fathers, the Doctors of the Church, and various popes throughout history not only teach that capital punishment is legitimate in principle.  They teach that it is legitimate in principle even when carried out merely for purposes of retributive justice. 

Fifth, contrary to what Robbie asserts, this previous teaching is in fact infallible.  Every Catholic must assent to it.  The First Vatican Council solemnly teaches that:

[T]hat 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.

The Council of Trent taught the same thing.  Now, many scriptural passages teach not only that capital punishment is legitimate, but also that it is legitimate even just for purposes of securing retributive justice.  (Cf. the examples Joe Bessette and I cited in our recent Catholic World Report article.)  And the Church, from the Fathers onward, has always understood these passages this way.  The various contemporary attempts creatively to re-interpret such passages simply cannot be squared with the principle that scripture must be understood to mean what the Church has always “held” it to mean.

Even Christian Brugger, the “new natural law” theory’s point man on the biblical and theological side of the capital punishment debate, admits that certain key biblical passages (such as Genesis 9:6) are very difficult plausibly to interpret except as a sanction of the death penalty.  He also admits that the Fathers, even those who opposed the use of capital punishment in practice, are unanimous in their view that capital punishment is sanctioned by scripture and thus legitimate in principle.  But interestingly, execution for the sake of “defense” is the one purpose of capital punishment that we do not find much if at all discussed in scripture or the Fathers.  The purposes they almost always emphasize are retribution and deterrence.

Now, if scripture is infallible on faith and morals, and scripture teaches that capital punishment can in principle be legitimate even just for the purpose of retribution, then it is a straightforward logical deduction that it is infallible teaching that capital punishment can in principle be legitimate even just for the purpose of retribution.  This is one reason why there is simply no other way to interpret recent popes’ tendency toward abolitionism except as a prudential judgment (and specifically what I have elsewhere called a category 5 magisterial statement, with which Catholics are at liberty to disagree).  There is no “wiggle room” here whatsoever.  (Brugger’s tortuous attempt to get around this problem is given a detailed and thorough refutation in the forthcoming By Man Shall His Blood Be Shed, in which all the other points summarized here are also developed at length.)

This is why Cardinal Ratzinger, despite his personal opposition to capital punishment, made the statements he did about the subject during his time as head of the CDF, i.e. to the effect that John Paul II’s teaching was prudential rather than doctrinal and to the effect that a good Catholic could disagree with it.  This is what Ratzinger’s famous “hermeneutic of continuity” with past teaching – and thus the very credibility of the magisterium of the Church – strictly requires.

Those of us who make this point are, accordingly, not “battling the Church” (to use a phrase Shea keeps repeating like a mantra).  On the contrary, we are, like then-Cardinal Ratzinger, defending the Church’s claim to have preserved the Deposit of Faith whole and undefiled.

[For further discussion of capital punishment, including criticism of other aspects of the “new natural law” position, see the posts and articles collected here.]

UPDATE 10/1: I've noted in earlier posts that views like the "new natural law" position on capital punishment give aid and comfort to Protestant critics of Catholicism, who falsely accuse the Church of manufacturing novel doctrines and contradicting scripture.  The Calvinist blog Triablogue cites Prof. George's remarks as confirming evidence for this accusation.