Prof. Fastiggi’s pretzel logic

I’m going to take a break from the topic of the death penalty soon – I’m quite sick of it myself, believe you me – but the trouble is that critics of By Man Shall His Blood Be Shed keep saying things that demand a response.  The latest example is Prof. Robert Fastiggi, who in a series of combox remarks has replied to my recent Catholic World Report article on capital punishment and the ordinary magisterium.  Once again, he ties himself in ever more convoluted logical knots trying to justify the unjustifiable, viz. the possibility of a reversal of 2000 years of clear and unbroken magisterial and scriptural teaching.  But the attempt is well worth calling attention to, because it shows just how far one has to go through the looking glass in order to try to avoid the implications of the evidence Joe Bessette and I have set out in our book.

Since one of his more oversensitive admirers has falsely accused me of gratuitous attacks on Prof. Fastiggi, I want to preface the remarks that follow by saying that they are in no way intended personally.  On the contrary, I admire Prof. Fastiggi for his unwavering dedication to the Church, for his erudition, and for the unfailingly gentlemanly way he has engaged his critics both in the debate over capital punishment and in the other, often heated, theological debates that have arisen during the pontificate of Pope Francis.  Prof. Fastiggi hits hard but he plays fair.  I am only doing the same.  (And any reader offended by the occasional joke or Photoshop image needs to get a sense of humor.)

Let me start with Prof. Fastiggi’s strangest remark.  In my article, I cited the CDF document Donum Veritatis, which rejects the thesis that the magisterium could be “habitually mistaken” in its prudential judgments.  I argued that if the Church could not be habitually mistaken even in her prudential judgments, then a fortiori she could hardly be habitually mistaken on much graver matters of moral principle and scriptural interpretation.  Now, the Church has for two millennia taught that the death penalty is legitimate at least in principle, and done so on biblical grounds.  Hence, if she were to reverse this teaching – which Fastiggi claims is possible – then it would follow that the Church would be saying that she has after all been habitually mistaken, for two millennia, about grave matters of moral principle and scriptural interpretation.  Therefore, I concluded, the Church cannot carry out such a reversal, consistent with her claims about her own infallibility.

Here is how Fastiggi responds:

Professor Feser, in his book co-authored with Prof. Bessette, states that St. John Paul II’s position [according to which capital punishment should be applied very rarely at most] “is a mistake, and a serious one” (p. 197). This, though, means that since 1995 the magisterium has been habitually mistaken on a prudential judgment (and it’s really much more than prudential). Feser, therefore, contradicts the very passage from the CDF’s 1990 instruction, Donum Veritatis, that he cites… To suggest that the magisterium has been habitually mistaken for 23 years on the death penalty seems very problematical.  Does not Feser believe that the Church’s magisterium has enjoyed divine assistance in the last 23 years with regard to capital punishment?

End quote.  So, according to Fastiggi, it “seems very problematical” to suppose that the magisterium could have gotten a prudential judgment wrong for 23 years, but not problematical to suppose that the magisterium could have gotten a matter of basic moral principle and scriptural interpretation wrong for two millennia.  What can one say about such a manifestly absurd position other than that it is manifestly absurd?  I am sorry if that sounds unkind to Prof. Fastiggi, but the offended reader should worry less about whether this judgment sounds unkind, and more about whether it is true.  And if the reader thinks it is not true, I challenge him to explain exactly how this particular view of Prof. Fastiggi’s can be defended against the charge of absurdity.

Furthermore, I am also puzzled that someone with Prof. Fastiggi’s knowledge of Church history would think 23 years is a long time for the magisterium to have gotten a prudential judgment wrong.  By the standards of Church history, 23 years is a mere blip.  Moreover, there are many examples of bad prudential judgments that have stood for comparable lengths of time. 

Take, for example, the notorious Cadaver Synod and its aftermath, which not only involved the bizarre spectacle of Pope Stephen VI putting the corpse of his predecessor Pope Formosus on trial and then desecrating it, but also Stephen’s nullifying all of Formosus’ official acts and declaring his ordinations invalid.  Two later popes and two synods reversed Stephen’s decision, but then a yet later pope, Sergius III, and a synod he called, reversed that decision and reaffirmed Stephen’s judgments.  Sergius also had his predecessor murdered and backed up his reaffirmation of Stephen’s decrees with threats of violence.  The whole sorry spectacle was initiated by a scandalous and indeed insane public act by one pope, reinforced by gravely immoral acts by another, involved contradictory judgments made by several popes and synods, and lasted for about 15 years.  As The Oxford Dictionary of Popes notes, given that the sacraments and much of the life of the Church depend on the validity of ordinations and the reliability of official papal acts, “the resulting confusion was indescribable” (p. 119). 

Or consider the Great Western Schism, which lasted for forty years.  It was a consequence of mistakes made by Pope Urban VI, whom the Catholic Encyclopedia describes as “obstinate and intractable” and “inconstant and quarrelsome,” with “his whole reign [being] a series of misadventures.”  It was perpetuated by further decisions made by other members of the hierarchy.  At the lowest point of the schism there were three men claiming to be the true pope, and theologians, and indeed even figures who would later be recognized as saints, were divided on the issue.  As the Catholic Encyclopedia notes, “to contemporaries this problem [seemed]… almost insoluble.”

Further examples could easily be given, but these suffice to show that it is possible for grave prudential errors to persist for years.  In comparison with the Cadaver Synod and the Great Western Schism, the hypothesis that recent popes have been mistaken in their prudential judgment that capital punishment is no longer necessary for the protection of society is actually pretty modest.

Now, if a mistake that persists even for decades wouldn’t count as “habitual” in the sense ruled out by Donum Veritatis, then what would count as “habitual” prudential error?  For exactly how many years would the mistake have to persist?  That’s a good question, but we needn’t give a precise answer for present purposes.  We need only note that, since the Church is 2000 years old, we can be certain that a mistake that persists for 2000 years would count as “habitual” in the relevant sense.  But that is precisely the kind of mistake that Prof. Fastiggi (not me!) thinks might be attributable to the Church.  Indeed, he thinks the Church might have been wrong for that long about matters of moral principle and scriptural interpretation, and not merely about a prudential judgment.  So, how Fastiggi can maintain a straight face while suggesting that he is somehow more loyal to the teaching of Donum Veritatis than I am, I have no idea.  But I would certainly think twice before playing poker against him. 

Then there is Prof. Fastiggi’s assertion – and sheer assertion is all that it is – that Pope St. John Paul II’s teaching on capital punishment was “much more than prudential.”  Now, Joe Bessette and I devote over fifty pages of our book (pp. 144-196) to a careful analysis of the statements made on the subject of capital punishment by popes John Paul II, Benedict XVI, and Francis.  We address in detail all the arguments made by theologians who claim that the teaching of these popes counts as either a reversal or development of doctrine, and we show that those arguments fail.  We do so in a sober and scholarly manner, in no way heaping any abuse on those who disagree with us.  We claim to establish that the teaching of these popes is indeed nothing more than a prudential judgment that is not binding on Catholics. 

Not one of the critics of our book who appeals to Pope St. John Paul II’s teaching has addressed these arguments.  Hart and Griffiths assert that we are wrong, but do absolutely nothing to back up this assertion other than to fling insults.  Brugger and Fastiggi, to their credit, do not resort to insult, but they too simply make undefended assertions, without answering the arguments in the relevant section of By Man.  Since they offer no actual criticisms of those arguments, they really give me nothing to respond to.  Suffice it to say that their silence speaks volumes. 

Let’s move on to some of Prof. Fastiggi’s other comments.  In my Catholic World Report article I had also appealed to the teaching of Lumen Gentium 12, which says that the entire body of the faithful cannot err when they show universal agreement on a matter of faith and morals.  Fastiggi responds:

Feser… fails, though, to mention that this universal agreement “is exercised under the guidance of the sacred teaching authority, in faithful and respectful obedience to which the people of God accepts that which is not just the word of men but truly the word of God.”  This last sentence underlines the role of the magisterium in determining whether a teaching is definitive and infallible or whether it isn’t.

End quote.  The first thing to say in response to this is that I certainly agree that the universal agreement of the faithful would have to be in harmony with the judgment of the magisterium.  Indeed, that follows trivially from the fact that the magisterial authorities are themselves included among the faithful.  So, I obviously wasn’t talking about a case where the body of the faithful think one thing and the magisterium thinks another.  Rather, the universal agreement that I was speaking of, and that Lumen Gentium is speaking of, has to do with a situation where the magisterium and the faithful at large are all in agreement on some matter of faith and morals.  And what I noted was that the magisterium and the faithful as a whole were for centuries in agreement on the legitimacy in principle of capital punishment.  Therefore, given the teaching of Lumen Gentium, that teaching cannot be erroneous.

But Fastiggi seems to think that even this centuries-long agreement is irrelevant if it ever turns out that magisterial authorities at some future date decide to reverse a teaching.  The trouble with this, though, is that it completely evacuates the teaching of Lumen Gentium 12 of any substantive content.  On Fastiggi’s interpretation, the universal agreement of the faithful cannot be wrong… except when it is wrong, because some future pope decides to declare it wrong!  And that makes the universal agreement of the faithful of no ultimate significance whatsoever.  For it is really the judgment of whoever happens currently to be pope that determines, retroactively as it were, when the centuries-long universal agreement of the faithful really counts.  In that case, though, Lumen Gentium might as well not have bothered mentioning the universal agreement of the faithful at all.  If, however, Lumen Gentium was intended to make a substantive claim about the authority of the universal agreement of the faithful (which it surely was), then Fastiggi’s position must be rejected.

Fastiggi also writes:

Trying to determine which teachings are infallible by virtue of the ordinary and universal magisterium, however, is not any easy task. In his article, it would have been good for Feser to cite Lumen Gentium, 25, which notes that the ordinary and universal magisterium is infallible when the Catholic bishops “maintaining the bond of communion among themselves and with the successor of Peter, and authentically teaching matters of faith and morals, are in agreement on one position as definitively to be held.” This sets a very high standard, for it’s not so easy to verify whether the bishops, teaching in communion with the Roman Pontiff, have come to an agreement that one position (unam sententiam) on faith or morals must be definitively held.

End quote.  The trouble with this, though, is that Fastiggi once again simply begs the question.  In By Man, Joe Bessette and I point out (in response to Brugger, who makes the same mistake Fastiggi is making here) that Lumen Gentium 25 is in fact giving only sufficient conditions for the infallible exercise of the ordinary and universal magisterium, not necessary conditions.  Yes, when the bishops teach in communion with the pope in precisely the manner Lumen Gentium specifies, they are teaching infallibly.  But it doesn’t follow that that is the only way that the ordinary and universal magisterium can teach infallibly, and indeed, the texts I cite in my Catholic World Report article show that it is not the only way.  Fastiggi simply assumes, without argument, the contrary view.

The most serious problem with Fastiggi’s position, however, is enshrined in remarks like the following:

The magisterium itself is usually the best source for determining which teachings of the ordinary and universal magisterium are infallible and which are not.  When subsequent popes show they are not bound by judgments of their predecessors, that’s a good indication that those judgments were not definitive…

If the magisterium in the future declares capital punishment – even under certain conditions – to be intrinsically evil, I’ll abide by the magisterium’s judgment. This would be an indication that there was no prior definitive magisterial teaching on the subject.

Similarly, in a later comment he writes:

The fact that Pope Francis and the overwhelming majority of bishops now reject capital punishment is a sign that there never was a definitive magisterial tradition on the matter.

End quote.  The trouble with this, like the trouble with Fastiggi’s remarks about Lumen Gentium 12, is that it appears to imply a voluntarist or Orwellian conception of the papal magisterium.  No matter what scripture, tradition, and previous popes all have said, for Fastiggi none of it has any binding authority if the current pope decides that it has no binding authority, and every previous scriptural and magisterial statement means whatever the current pope decides it means.

Now, one problem with this is that it is simply incompatible with what the Church herself teaches about the authority of popes.  In By Man and elsewhere, I have cited many texts (from Vatican I, Vatican II, Pope Benedict XVI, etc.) showing that popes have no authority to introduce novel doctrines, to contradict scripture, to reject the unanimous scriptural interpretations of the Fathers, to assign novel meanings to dogmas, etc.  As in the case of Lumen Gentium 12, Fastiggi’s position essentially evacuates these texts of any substantive content.  For Fastiggi, the pope cannot contradict scripture, tradition, or the consensus of his predecessors… but only because he can simply stipulate that whatever he wants to teach is, appearances notwithstanding, really in harmony with what scripture, tradition, and previous popes were teaching all along.  He’s like the Party in 1984 (“We are at war with Eastasia.  We have always been at war with Eastasia”).  Obviously, this is not what texts like the ones I have cited are saying.  Their point is precisely that “the Pope is not an absolute monarch whose thoughts and desires are law” (as Pope Benedict XVI taught).

Not only is Fastiggi’s apparent position contrary to the Catholic conception of papal authority, it also commits what logicians call the “No True Scotsman” fallacy.  No matter what text from scripture, the Fathers, or previous popes you appeal to, Fastiggi will wave it off by saying that if Pope Francis or some future pope decides to contradict it, then the text in question must not really be binding after all, or must not really have meant what everyone has always taken it to mean.   All possible counterevidence is simply redefined away.

A third and related problem is that this position completely destroys the credibility of papal authority by effectively conceding to its Protestant and atheist critics the caricature they typically present of it.  Catholic apologists constantly have to explain to critics that the pope is not a dictator who can create doctrines by fiat, that he cannot contradict or reinterpret scripture at will, etc.  Though I don’t think he intends this, Fastiggi’s position essentially entails that the critics are right and the apologists are wrong.

Let’s turn to this set of remarks by Prof. Fastiggi:

Since when is it a “cheap shot” to appeal to the authority of the Roman Pontiff over that of a private scholar?… I think Feser’s arguments are convincing to those who already favor capital punishment.  They are not convincing to me and many others… Feser could shout “error” all he wants, but his shouts could never match the authority of the Catholic magisterium.

End quote.  The first problem with this is that Fastiggi simply misrepresents the nature of the dispute between us.  It seems that Fastiggi is so enamored of arguments from authority that he has forgotten that there is any other kind.  Hence he proposes that what is in question is whether the authority of a “private scholar” like me trumps that of the Roman Pontiff.  But that is not what is in question.  It has nothing at all to do with my “authority” or lack thereof.  Rather, the question is a purely logical one, namely: Can a reversal of past teaching on capital punishment be reconciled with what the Church claims about her own infallibility?  I have shown that such a reversal logically cannot be reconciled with those claims.  And Fastiggi says absolutely nothing to show otherwise.  He simply changes the subject by throwing out the “private scholar” red herring.

It is also quite absurd to pretend that it is only “those who already favor capital punishment” who would find my arguments convincing.  For one thing, this is simply an ad hominem fallacy of poisoning the well which, if it had any force at all, could with equal plausibility be turned against Fastiggi himself by suggesting that only those who already disapprove of capital punishment would agree with his arguments.

For another thing, Fastiggi’s claim is, as a matter of empirical fact, easily shown to be false.  In the very article to which Fastiggi is responding, I cited Archbishop Charles Chaput as an example of a churchman who is strongly opposed to capital punishment but who also agrees that the Church cannot teach that it is intrinsically immoral “without repudiating her own identity.”  Cardinal Avery Dulles also held both that capital punishment should be abolished in practice and that traditional teaching cannot be reversed.  Even Mark Shea, whose hostility to capital punishment and its defenders knows almost no bounds, has consistently admitted that the Church’s traditional teaching is irreversible.

But at the end of the day, this kind of stuff is a distraction from the main issue, which is this: If capital punishment were intrinsically evil, then the magisterium of the Church will have been teaching grave moral error and badly misunderstanding scripture for two millennia.  And that would undermine the credibility of the Church.  If she could be that wrong for that long about something that serious, why should we trust anything else she says?

I have repeatedly hammered on this point, and I find that my critics repeatedly avoid addressing it.  They do not say either: “Yes, that’s true, but here’s why it’s not in fact a problem” or: “No, it’s not true, and here’s why.”  They simply change the subject.  For example, they accuse me of being bloodthirsty, or they quote from the catechism, or they bring up slavery or the slaughter of the Canaanites, or they bemoan the cold rationalism of Thomists, or they start ranting about Donald Trump and “Republican Rite Catholicism,” or in some other way they try to dodge the question of exactly how the Church could be trusted on any other subject if she had been teaching grave moral error and badly misunderstanding scripture for two millennia.  I’d ask why they try to dodge it, but I think I already know the answer.

The closest Fastiggi comes to addressing the problem is in the following brief remarks:

I think the 2,000 year tradition is something of a myth.  Before Pope Innocent I’s permission in 405 for public officials to use torture and capital punishment there was nothing handed down in prior tradition (as Innocent I himself states). Some of the patristic sources cited by Feser and Bessette do not really show support for capital punishment (not even in principle).

But it is no myth.  First, though Fastiggi asserts that there is “nothing” in the tradition before Innocent I, nothing could be further from the truth.  For one thing, there are, of course, all the relevant scriptural passages, which no Catholic denied supported capital punishment at least in principle until very recently.  For another thing, there are all the patristic texts Joe and I cite in our book and which I have cited in earlier responses to critics.  Even if Fastiggi were correct that some of these do not really acknowledge that capital punishment is legitimate at least in principle – and he is not correct about that (and in any case he offers no argument for this claim) – there are other patristic texts that clearly do affirm this.  So, again, the claim that there is “nothing” in the tradition before the year 405 is simply false.

Second, what Fastiggi would need in order to show that the 2000 year tradition I have been speaking of here is a “myth” is an example of a patristic writer who not only does not approve of capital punishment in practice (and I have never denied that some of the Fathers opposed it in practice) but who regards it as always and intrinsically evil even in principle.  And there are no Fathers who hold that.  Even Brugger admits that.  Indeed, even Hart seems at the end of the day to admit that the Fathers do not regard the death penalty as contrary to natural law; his point is rather to emphasize that some of them regarded it as contrary to the higher demands of Christian morality, specifically.

Third, for the specific purposes of my argument about the ordinary magisterium in my Catholic World Report article, what matters is not what this or that writer held in his capacity as a private theologian, but rather what magisterial authorities have said when, precisely in their capacity as magisterial authorities, they explicitly address the question of what is legitimate in principle for Christians.  And even if we started just with Pope Innocent I, we have an unbroken 1600 year tradition where no pope condemned capital punishment as intrinsically immoral and many popes explicitly affirmed that it is legitimate at least in principle, even by the standards of specifically Christian morality. 

So, even by Fastiggi’s lights, that would be a 1600-year-long error, if capital punishment turned out to be intrinsically wrong.  Again, why he thinks an error of even 23 years “seems very problematical,” but an error of 1600 years does not, I have no idea.