Sunday, January 20, 2019
Washburn contra the “new natural lawyers”
I highly recommend theologian Christian Washburn’s excellent article Is there anything new to say about the “new natural law” (NNL) position on capital punishment? There is, as Washburn shows. from the latest issue of .
Washburn begins by noting an odd parallel. John T. Noonan’s on the history of Catholic thinking about contraception showed that the Church’s teaching against the practice has been consistent for two millennia. And yet Noonan nevertheless proposed that the teaching could be reversed. Similarly, NNL scholar E. Christian Brugger’s shows that the Church’s teaching on the legitimacy in principle of capital punishment has also been consistent for two millennia. And yet Brugger nevertheless proposes that this teaching could be reversed.
Part of the oddness of this is that both Noonan’s position and Brugger’s are perverse. In Catholic theology, the more ancient and consistent a teaching concerning faith and morals, the less plausible can be the case for a reversal of that teaching. Hence both Noonan and Brugger end up taking a position that is precisely the opposite of what the results of their historical investigations can support.
But another oddity here is that Brugger himself, and other NNL writers, see the perversity in the case of Noonan. In an influential 1978 paper, Germain Grisez, the father of NNL theory (working together with the great Catholic moral theologian John C. Ford, who was not a NNL theorist), argued that evidence like that cited by Noonan in fact shows that the Church’s traditional doctrine against contraception has been taught infallibly. Other NNL thinkers have followed them in this judgment. And yet where capital punishment is concerned, Grisez and other NNL writers draw the opposite conclusion from the same sort of evidence!
Indeed, it’s worse than that. Washburn notes that the evidence for the traditional teaching on capital punishment is stronger than that cited by Grisez in favor of the traditional teaching on contraception. For example, the number of Fathers and popes who can be cited in defense of capital punishment is larger in each case than the number that Grisez cites in favor of the traditional teaching against contraception. Furthermore, the NNL writers apply their standards of evidence in an inconsistent way. For example, Grisez cites the Roman Catechism as evidence that the traditional teaching against contraception is part of the ordinary magisterium, but he and other NNL writers downplay the fact that the traditional teaching on capital punishment is also found in the Roman Catechism. Indeed, the Roman Catechism presents more by way of citations from authoritative sources in defense of traditional teaching on capital punishment than it does in the case of contraception.
In short, if Grisez, Brugger, and other NNL writers were consistent in their application of the standards they deploy in criticism of Noonan, they would uphold traditional teaching on capital punishment no less than traditional teaching on contraception. The reason they don’t apply these standards consistently is, of course, that traditional teaching on capital punishment conflicts with Grisez’s personal theology, whereas traditional teaching on contraception does not. The NNL theory is allowed to trump the evidence from tradition in the one case, even while it is claimed to be supported by the evidence from tradition in the other. For Grisez and company, the attitude is “NNL über alles.”
In defense of his proposal that the Church could reverse her traditional teaching on capital punishment, Brugger claims that a doctrine cannot be said to have been taught infallibly by the ordinary magisterium unless it has been explicitly taught in a definitive way by all the bishops. Joe Bessette and I criticize Brugger’s criterion in By Man Shall His Blood Be Shed, and Washburn has some criticisms of his own. First, he says, this criterion of Brugger’s is “a theological novelty” having no support in the tradition. Second, it is so stringent a standard that it would render impossible a proof of any doctrine from the ordinary magisterium (including doctrines the NNL writers would want to uphold). Third, it conflicts with the teaching of Pope Pius IX’s Tuas Libenter, which cites the constant consensus of theologians as evidence of a doctrine’s being an infallible part of the ordinary magisterium. (Cf. my Catholic World Report article “Capital punishment and the infallibility of the ordinary magisterium.”)
Washburn also points out that while Brugger concedes that the evidence from the Fathers, Doctors, and popes all supports the traditional teaching that capital punishment can be legitimate in principle, that evidence is in fact even stronger than Brugger’s survey indicates. For example, when considering the teaching of the Fathers and the popes on the subject of capital punishment, Brugger tends to focus on statements pertaining to the question of the status of capital punishment under the Christian dispensation. But Washburn says that Brugger neglects important patristic and papal statements about capital punishment in the Old Testament, some of which refer to the practice as having been a part of “divine law” or “sacred law.” As Washburn points out, a practice that is part of divine or sacred law can hardly be intrinsically evil (as NNL theory says capital punishment is), whatever one says about its status under the Christian dispensation.
Washburn also thinks that Brugger fails to consider the weight of the evidence from canon law and the policies of the popes concerning the use of capital punishment in practice. I think he is right about this, and to what he says, I would add the following point. Suppose that canon law and the popes had for centuries officially decreed that abortion or contraception is morally permissible, that these practices were approved of and widely adopted in the Papal States, etc. This would hardly be consistent with the Church’s claim to be an infallible guide to faith and morals. For she would have been directly leading untold numbers of Catholics into grave moral corruption for centuries. Yet Grisez, Brugger, and other NNL writers, who claim that capital punishment is always and intrinsically evil, in effect hold that canon law and the popes did exactly this sort of thing where that practice is concerned.
(Note that it is not a good reply to this to point out that there have been many popes and bishops who were guilty of murder, adultery, fornication, simony, etc. Of course there have been, but they never taught that these things are good in official magisterial statements, made them official policy, incorporated them into canon law, etc. The Church’s being an infallible moral teacher is compatible with churchmen being personally corrupt, but not with her having officially taught grave moral error century after century after century.)
In my CWR article on capital punishment and the ordinary magisterium, I emphasized the weight that the teaching of the Doctors of the Church has in Catholic theology, and Washburn makes some important points about that matter as well. He notes that at least 18 of the 35 Doctors taught that capital punishment can be permissible in principle, and in addition to the Doctors I cited in my article, he cites the Venerable Bede, Peter Damian, Bonaventure, Albert, and Lawrence of Brindisi. Washburn is also critical of the strained – and indeed, sometimes manifestly absurd – reinterpretations of biblical passages that NNL writers have to come up with in order to try to reconcile scripture with their position.
Anyway, as they say, read the whole thing.