Indeed,
though the Doctors of the Church are not individually infallible, it would be
absurd to suppose that they could all
be wrong on some theological issue about which they are in agreement. For given their high degree of sanctity, how
could all of them be wrong about some
matter of Christian morality? Given their
eminence in learning, how could all
of them fall into error on some point of doctrine or scriptural interpretation?
Given that they are formally recognized
by the Church as exemplary guides to faith and morals, how could they all collectively lead the faithful into
grave moral or theological error?
Consistency
with the consensus of the Doctors has, accordingly, been regarded by the Church
as a mark of orthodoxy in doctrine. For
example, in 1312 the Council of Vienne defended a point of doctrine by
appealing to “the common opinion of
apostolic reflection of the Holy Fathers and
the Doctors” (Denzinger section 480).
Also relevant is Tuas Libenter,
in which Pope Pius IX stated:
[T]hat subjection which is to be manifested by an act of
divine faith… would not have to be limited to those matters which have been
defined by express decrees of the ecumenical Councils, or of the Roman Pontiffs
and of this See, but would have to be extended also to those matters which are
handed down as divinely revealed by the ordinary teaching power of the whole
Church spread throughout the world, and
therefore, by universal and common consent are held by Catholic theologians to
belong to faith…
[I]t is not sufficient for learned Catholics to accept and
revere the aforesaid dogmas of the Church, but… it is also necessary to subject themselves… to those forms of doctrine
which are held by the common and constant
consent of Catholics as theological truths and conclusions, so certain that
opinions opposed to these same forms of doctrine, although they cannot be
called heretical, nevertheless deserve some theological censure. (Denzinger
sections 1683-1684, emphasis added)
Here Pius IX
held the consensus opinion of Catholic theologians to have such a high status
that even if opposed views are not strictly heretical, they nevertheless “deserve
some theological censure.” Now, the
Doctors of the Church are the theologians on whom the Church has placed a
special stamp of approval, putting them forward as models. It stands to reason that if there is a
consensus among them on some thesis
of faith or morals, that is powerful evidence that it must be correct.
Now,
consider the topic of capital punishment.
Even if we just confined ourselves to scripture, or to the consensus of
the Fathers of the Church, or to the consistent teaching of the popes down to
Benedict XVI, there can be no question whatsoever that the Church has taught
irreformably that capital punishment can be licit in principle. That is not to deny that some of the Fathers
and some of these popes have recommended against using it in practice, but the point is that even they
acknowledged that it is not intrinsically
wrong to inflict the death penalty.
Joseph Bessette and I demonstrate this at length in our book By Man Shall His Blood Be Shed: A Catholic
Defense of Capital Punishment.
I have also done so elsewhere, such as in my Catholic World Report article “Capital
Punishment and the Infallibility of the Ordinary Magisterium.”
All the
same, it is useful to consider what the Doctors of the Church have said on the
matter, because they too are in agreement that the death penalty can in
principle be a legitimate punishment.
This would be a powerful argument for the liceity of capital punishment
even if we didn’t already have scripture, the Fathers, and two millennia of
papal teaching. Adding the Doctors to
the witnesses on this matter puts icing on the cake, as it were, highlighting
the futility of thinking that this is a teaching the Church could reverse. The Doctors who have addressed the topic of
capital punishment include St. Ephraem, St. Hilary, St. Gregory of Nazianzus,
St. Ambrose, St. Jerome, St. John Chrysostom, St. Augustine, St. Bernard of
Clairvaux, St. Thomas Aquinas, St. Peter Canisius, St. Robert Bellarmine, and
St. Alphonsus Liguori. (The earliest of
these thinkers are, of course, Fathers as well.) All of them agree that it can be morally
legitimate in principle, even those among them who recommend against using it
in practice. (See the book and article
referred to above for the details.)
We can now
add St. John Henry Newman to this consensus.
The death penalty was not a topic Newman said a great deal about, but
what he did say is important. For
example, in Lecture 8
of Lectures on the Present Position of
Catholics in England, Newman cites the following example of the way a
practice can be embodied in the tradition of a nation like England rather than in
explicit law: “There is no explicit written law, for instance, simply declaring
murder to be a capital offence, unless, indeed, we have recourse to the divine
command in the ninth chapter of the book of Genesis.” (This statement is from a longer passage
first written when Newman was a Protestant, which he quotes in order to comment
on it. As he immediately goes on to say
about the passage, “I see nothing to alter in these remarks, written many years
before I became a Catholic.”)
Newman’s
reference here is to Genesis 9:5-6, which states:
For your lifeblood I will surely require a reckoning; of
every beast I will require it and of man; of every man’s brother I will require
the life of man. Whoever sheds the blood
of man, by man shall his blood be shed; for God made man in his own image.
Newman
understands this passage to be an “explicit written law… declaring murder to be
a capital offence,” and one that holds of “divine command.” Note that this is diametrically opposed to modern
attempts to reinterpret this passage as merely a divine prediction that murder
would as a matter of fact lead to
retaliation. For Newman, God is not
merely predicting but indeed commanding that murderers should be
slain, and as a matter of punishment. And here he is, of course, simply reiterating
what the traditional understanding always said.
In a series
of letters to his nephew, Newman addressed questions about whether
the Church has behaved in an immoral way over the centuries. Among the points he makes are that one must
distinguish between, on the one hand, the state’s having the power justly to
punish offenders with death, and on the other hand, specific cases where this
power was used in a cruel manner. He
writes:
It is on the Inquisition that you mainly dwell; the question
is whether such enormity of cruelty, as is commonly ascribed to it, is to be
considered the act of the Church. As to
Dr. Ward in the Dublin Review, his
point (I think) was not the question of cruelty,
but whether persecution, such as in Spain, was unjust; and with the capital punishment prescribed in the Mosaic
law for idolatry, blasphemy, and witchcraft, and St. Paul's transferring the
power of the sword to Christian magistrates, it seems difficult to call
persecution (commonly so called) unjust.
I suppose in like manner he would not
deny, but condemn, the craft and cruelty, and the wholesale character of
St. Bartholomew's Massacre; but still would argue in the abstract in defence of
the magistrate's bearing the sword, and of the Church's sanctioning its use, in
the aspect of justice, as Moses, Joshua, and Samuel might use it, against
heretics, rebels, and cruel and crafty enemies.
Note first
that Newman says that capital punishment is “prescribed” in the Mosaic law for
various offenses, and that such killing is to be understood “in the aspect of
justice.” This should, of course, be obvious
enough to anyone who reads the first five books of the Old Testament, but
occasionally people will suggest that the Old Testament merely permits the death penalty without
actually commending it. Clearly, Newman
would have no truck with such sophistry.
The second
thing to note is Newman’s allusion here to Romans 13: 3-4, which says:
For rulers are not a terror to good conduct, but to bad. Would you have no fear of him who is in
authority? Then do what is good, and you
will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does
not bear the sword in vain; he is the servant of God to execute his wrath on
the wrongdoer.
This has
traditionally been understood as sanctioning capital punishment, and Newman
clearly has this interpretation in mind when he refers to “St. Paul's
transferring the power of the sword” and “the magistrate's bearing the sword,
and of the Church's sanctioning its use.”
With this passage too, death penalty opponents sometimes propose
strained reinterpretations, but Newman would not agree with them.
But there is
more to be said. For note that Newman
refers, specifically, to “St. Paul's transferring the power of the sword to Christian magistrates.” This too is part of the traditional
understanding, and yet another thing that modern day abolitionists sometimes
resist. For it is sometimes proposed
that, even if the death penalty is licit as a matter of natural law, its use is
not compatible with the higher demands of specifically Christian morality. Newman would clearly reject this claim as
well. Again, he holds that St. Paul’s
teaching authorizes the use of capital punishment for Christian rulers in particular, not merely for states governed
only by natural law.
In short, we
now have the testimony of yet another Doctor of the Church that the liceity of
the death penalty is the teaching of Genesis 9 and Romans 13, and that this
teaching is a matter of Christian morality no less than of natural law. This directly contradicts those who claim
that the Church could teach that capital punishment is intrinsically wrong, or
that scripture merely tolerates rather than sanctions it, or that it is
contrary to the higher demands of the Gospel even if it is consistent with
natural law.
Now, Newman
is best known for his theology of the development of doctrine. Could claims like the ones we’ve just seen
him reject nevertheless be justified by Newman’s own criteria as “developments”
of Church teaching on the death penalty?
Clearly not, because Newman, like St. Vincent of Lerins (the other great
theologian of doctrinal development), insists that a genuine development can
never contradict past teaching. Newman writes:
A true development [of doctrine], then, may be described as
one which is conservative of the course of antecedent developments being really
those antecedents and something besides them: it is an addition which
illustrates, not obscures, corroborates, not corrects, the body of thought from
which it proceeds; and this is its characteristic as contrasted with a
corruption… A developed doctrine which reverses the course of development which
has preceded it, is no true development but a corruption. (An
Essay on the Development of Christian Doctrine, Chapter 5)
Suppose you
say “All men are mortal, and Socrates is a man.” If I add “So, Socrates is mortal,” I have
said something that can be said to be a development
of what you said, because it follows logically from what you said. It adds
something, insofar as it says something you did not yourself say. But nevertheless, what it adds was already
implicitly there in what you said, and I have simply drawn it out.
By contrast,
if I added something like “So, all men are redheads,” I could not be said to have developed what you
said, because my addition in no way follows from what you said, and indeed has
nothing at all to do with what you said.
Even more obviously, if I added either “Some men are immortal” or
“Socrates is immortal,” I would not only not have “developed” what you said,
but, on the contrary, I would have reversed
and contradicted what you said. For
the claim that “Some men are immortal” directly contradicts your statement that
“All men are mortal.” And the statement
“Socrates is immortal,” though it does not explicitly contradict what you said,
does contradict what was implicit in
your remarks.
Similarly,
to say that the death penalty is intrinsically wrong, or that it is not
sanctioned by scripture, or that it is never permitted by the higher standards
of Christian morality, would contradict
and reverse what scripture and tradition have consistently said. Hence to teach such things would, by Newman’s
criteria, not count as a development of doctrine, but rather as what he calls a
“corruption” of doctrine that attempts to “correct” rather than corroborate it,
and which “obscures” rather than illuminates it.
Newman, then, gives no aid and comfort whatsoever to Catholics who would like a doctrinal reversal on this matter. On the contrary, his words clearly condemn them.
Excellent, Thank you!
ReplyDeleteYou have blogged and tweeted about the DP
ReplyDeletemany times. What do you think is a just punishment for a convicted child molester/sex trafficker?
Rape has always been considered a capital crime. Sex trafficking seems to be a species of rape. Now one may say it is imprudent to execute sex traffickers because it will lead to the murder of their victims. I don’t agree with that if one uses plea deals effectively and makes the murder of a rape victim a guaranteed death sentence.
DeleteBut reasonable minds can differ on the prudence. It is licit intrinsically though.
Those who are convicted of child rape in Oklahoma can now be executed.
Deletehttps://oklahomavoice.com/briefs/oklahoma-prosecutors-can-seek-death-penalty-for-child-rape-on-first-offense/
Congress should make child rape a capital crime and mandate the DP. Jeffrey Epstein was a child rapist. His accomplice, Ghislaine Maxwell, was convicted of aiding him and sex trafficking and participating in sexual acts against children herself.
https://www.justice.gov/usao-sdny/pr/ghislaine-maxwell-sentenced-20-years-prison-conspiring-jeffrey-epstein-sexually-abuse
Trump sent her his well wishes. He never sent his well wishes to her victims.
https://www.politico.com/news/2020/08/04/trump-well-wishes-ghislaine-maxwell-391274
And now, Trump's former personal lawyer and currently his Deputy Atty Gen., had her transferred to a cushy minimum security prison, which former prison officials have said is outrageous.
https://www.nbcnews.com/news/us-news/ghislaine-maxwells-transfer-cushy-prison-camp-travesty-justice-ex-bop-rcna223045
And Trump has not ruled out a pardon for her.https://www.axios.com/2025/07/28/trump-epstein-ghislaine-maxwell-pardon
How have Catholic commentators understood Romans 13:3-4 in light of the fact that the authorities often harm and even execute people who have done nothing wrong (that's what martyrs are, and I happen to know a lot of people who lived under Communist governments). In fact, they executed Paul, not for any bad thing that he had done but because he was doing good things? This is an honest question: Paul seems to be saying, as a matter of fact, "if you do good, then you have nothing to fear from the authorities", and Paul's own life, to say nothing of the life of Our Lord, shows us that *this is not true*. What am I missing here? As a younger man I thought Paul's manner of death was funny: he goes around telling people this bullshit that they have nothing to fear from the authorities as long as they do what's right, and look what happens to him! Well kids, don't get in bed with The Man, he will always double-cross you! Now that I'm older, it's a matter of faith seeking understanding. I can believe that scripture is telling us something true in what appears to just be a false statement of fact, but I can't figure out how I'm supposed to read it. Can you help me with this?
ReplyDeleteDo you think that Paul did not foresee the danger to his own life from wicked magistrates? Do you think he had a two-dimensional understanding of government?
DeleteMy first blush impulse is to think of it as Socrates or St. Augustine might put it: that though a state might act unjustly, insofar as it does, it acts outside that very remit or role it has of justice; insofar as the state persecutes the just, the state is just banditry writ large. We should hope not to suffer from it, but it is far worse to be a bad man who is punished justly, than a just man punished unjustly. And this is consistent with the actions of both Socrates and St. Paul, who did not fear to be killed unjustly, in accordance with their teaching; even as they urged their states to render a just judgement.
DeleteThis is an honest question: Paul seems to be saying, as a matter of fact, "if you do good, then you have nothing to fear from the authorities", and Paul's own life, to say nothing of the life of Our Lord, shows us that *this is not true*. What am I missing here?
DeleteSt. Paul is also the one who said "all things work for the good of those who love Him."
St. Paul (and others in the Bible) teach clearly that God uses the injustice of unjust governors & princes, to advance His own designs. He used the (evil, idolatrous) Assyrian king and army to effect a change in Israel. He used the Persian king to help Israel in exile.
For those who (now) are just, but who were sinners in their past life, their current punishments that are not just according the true civil law may expiate the punishment due for sins in their past lives. For others who are good men, their sufferings "make up for what is lacking in the sufferings of Christ", i.e. they aid the Church and to the glory of God - and aid themselves, purifying them from attachment to sin and from lesser motives than love of God.
So, when Paul says "nothing to fear" he means not that good men will never suffer from the state, but that what they suffer will be for their good, and for the Church's good.
I think Saint Paul is writing about security and natural law (which the Romans did uphold to some degree), not about justice in every sense of the word, including justice for the Christian cult. I take it more as "respect the police officers because they work to protect you" (kind of).
Delete"For note that Newman refers, specifically, to 'St. Paul's transferring the power of the sword to Christian magistrates.' This too is part of the traditional understanding, and yet another thing that modern day abolitionists sometimes resist."
ReplyDeleteMaybe because it's an utterly anachronistic reading that's incompatible with the facts of Church history. There were no "Christian magistrates" in Paul's time, nor would there be for centuries. In fact, given the nature of Roman law (which was unjust and anti-Christ from top to bottom), a "Christian magistrate" would have been a blatant contradiction in terms. Moreover, this only became the "traditional understanding" of the death penalty after Christians gained political power. Tertullian and Athenagoras (at least if the logic of his statement in Legatio Pro Christianis is taken literally) were against the death penalty, and so was Hippolytus of Rome (assuming he actually wrote Apostolic Tradition). And the statements by early Church Fathers cited in the support of the death penalty are often just as ambigious in positive content as Paul's statement in Romans. Every (non-apologist) history I can find describes Innocent I's statement declaring the death penalty permissible as a *reversal* of earlier church practice. So no, Paul is not give Christian magistrates the sword. It seems strange that he would, given that Christians worshipped a man who had been unjustly sentenced to death.
I know there's really no point in arguing. Dr. Feser simply can't take an honest look at the historical evidence without his entire worldview collapsing, so no amount of argument will convince him. And besides, this ship has sailed. No matter how much noise "faithful Catholics" in America make, the Church has been shifting on the death penalty for half a century, and the clock isn't going to be wound back. I confidently predict that those who believe in an infallible, unchanging, perfectly interally-consistent Church tradition that never develops in unexpected or seemingly contradictory ways will be forced into sedevacantism and probably open schism within the next 20 years, establishing a Pope-less Catholicism centered in America that requires absolute fidelity to its founders' interpretations of the Magisterium.
In other words, you'll wake up some time in the 2040s and realize that the real orthodoxy was the Protestants you became along the way.
"There were no "Christian magistrates" in Paul's time, nor would there be for centuries." - doesn't that depend on what is meant by "magistrates"? Sure, if by "magistrates" you mean "emperors and the like", there were none of those at that time. But if "magistrates" means simply "officials", then, of course, there were some low ranking officials who were Christians.
Delete"In fact, given the nature of Roman law (which was unjust and anti-Christ from top to bottom)" - why would it be "unjust from top to bottom"? It was not created by devils, but by humans (who were trying to making it just to some extent), so, it was flawed, but definitely not perfectly unjust.
Even Soviet or Nazi law was not perfectly unjust - it did punish some real crimes.
"Every (non-apologist) history I can find describes Innocent I's statement declaring the death penalty permissible as a *reversal* of earlier church practice." - and how is this "non-apologist history" to be defined and recognised?
For that matter, why should "non-apologist history" be preferred?
As the same Article 8 of the very first question of Summa Theologiae cited here says, "the inferior sciences neither prove their principles nor dispute with those who deny them, but leave this to a higher science".
So, if History takes from Catholic Theology a principle that Catholic Church is infallible, then it follows that there was no reversal of doctrine. If, instead, it takes a different principle from Protestant Theology (or "Atheist Theology"), that Catholic Church is a completely human and very fallible institution, then it follows that there was a reversal of doctrine.
Can we take none of those principles and reach an "unbiased" conclusion? Sure. This "unbiased conclusion" is, of course, "Not enough evidence.".
No, that is not a kind of conclusion that leads to papers and books being published.
And if they are to be published (as the alternative is boring, among other things), and we are to use some principle taken from some theology, why should we prefer a false principle to a true one?
"No matter how much noise "faithful Catholics" in America make, the Church has been shifting on the death penalty for half a century, and the clock isn't going to be wound back." - ah, yes, apparently, the most scientific of methods: extrapolation from the last couple of data points...
Have you already tried to make yourself rich by applying it in the stock market? You know - this stock is more expensive than yesterday, therefore, it will be more and more expensive forever (as "the clock isn't going to be wound back"), therefore, buy it at any price!
Thank you, Thurible, for that reactionary blather... as is usual with your form of play here. Now, also as usual, after you make comments about people being unwilling to engage meaningfully with the topic... do run off an hide and ignore all comments that point out all that is wrong with your post.
DeleteWould it be possible to ban this guy (Thurible), Dr. Feser? He's dragging down the quality of the conversation.
DeleteThis is one of the most hilariously stupid rants I have ever read, clothing itself in appeals to history while ironically inviting loud opprobrium. The sheer irony of claiming that nameless “histories” (apparently distinguished by being “non-apologist”) say that Pope Innocent “reversed” Church teaching is risible on its face, granted that one is not hard pressed to find ecclesial approval of the death penalty in principle beforehand.
ReplyDeleteThat all this comes as an extended commentary on Newman’s “anachronism” of saying that Christian magistrates were spoken of by St. Paul is even more hilariously stilted, since no intelligent reader would take that as a considered exegesis of the literal historical sense of that passage.
Whinge all you want, Thurible, about Feser’s alleged Protestantism (an indulge in an ironic ultramontanism), but nobody but yourself finds it remotely convincing.
Yeah, yeah, yeah. I'm sure St. Paul was just condemning pederasty in Romans, not consensual homosexual sex acts right? The Church just needs to get with the times. Lol
ReplyDeleteI have to ask for a clarification of what it would mean for Newman to attribute to St. Paul that he was "transferring" the power of the sword to Christian magistrates. I submit that it would be somewhat strange for Paul to express, under his own right, the authority to GRANT to Christian magistrates powers that they didn't otherwise have as civil magistrates, not on the strength of just describing what powers Christ had himself already specially granted to Christians who are magistrates (like powers he granted specially to his apostles).
ReplyDeleteUnder natural law, civil magistrates have civil authority to rule persons to the extent of their topical jurisdiction: water authorities can make binding rule on water issues, traffic magistrates can level traffic fines, etc. It is my understanding that natural law theory explicitly holds not only that God is telling Noah that capital punishment is right and just in the appropriate cases like murder, but that it is part of the natural law, for the reason specified BY GOD for it is man's very nature as created. If so, then the plenary civil authority (i.e. the state) has - by nature - the authority to inflict even the death penalty. It is not necessary for the top authorities of the state to be "granted" the power to use capital punishment, they have that authority by nature.
I suggest that maybe what Newman means here is something like this: some Christians (up to the time of his letter to the Romans) might have understood that Christians could be magistrates under the civil authority, but have had question whether such magistrates were allowed to use the power of the state to inflict capital punishment. St. Paul's words in 13:1-4 can be read to say that just as all power originates from God, so also the civil power - even of civil authorities who are not Christians. And just so does their civil authority to use punishments, even up to lethal punishments. And so Christians who are also civil authorities also have those powers from God, including those powers to punish evildoers, even up to lethal punishments.
That is, the "transferring" here is not the act of St. Paul conferring power, but the clarification that what applies to non-Christian authorities "conveys over" also to Christian authorities, they receive the same powers from God.
It would appear compatible with what Ed is saying, and as a Newman-ian doctrinal development, for a pope to teach that DP may not be intrinsically wrong, but in our times (i.e., 'in practice') it is always wrong (now, though not then). In which case we're left with a distinction with something of a vanishing, certainly trivial, difference. So if that's right, certainly some DP opponents indeed can take aid and comfort from Newman.
ReplyDeleteFor one thing, this only works if you say that Newman's view of doctrinal development is right and Bellarmine was wrong (Miguel would hate that, and saying that Bellarmine was wrong concedes a lot to Protestant positions in the 16th century disputes). For another, I think to teach that DP is not intrinsically wrong implies that even if in practice NOW it is always wrong that may not be so in the future, if conditions are different.
DeleteIn 1953, Ethel and Julius Rosenberg were executed for passing atomic secrets to Russia in violation of the 1917 Espionage Act.
Deletehttps://www.theguardian.com/world/1953/jun/20/usa.fromthearchive
And for another: if it is wrong "in our times", this is of its nature a contingent condition of prudential determination, about which the Church normally does not claim expertise or certainty. Moreover, in declaring that it belongs specially to the civil authorities to determine proper punishments, when she has said that it is "not intrinsically wrong" to use DP, she has then, by inference, declared that it is the civil authority and not herself that has the office, duty, and judgment to determine when DP is rightfully used and when not: she has not a special writ to judge it so herself.
DeleteFurthermore, if she were to make attempt to so judge on the basis of conditions today, she would have to propose and explain her judgement, to giver her reasons. So far, the only even sort-of, kind-of, attempt for her to claim such a reason is the simplistic one that "we now have the means to keep prisoners away from society so they cannot prey on people", so we don't need to put them to death for the sake of safety of persons. This claim is subject to dispute on two major grounds: first, as to the bare fact of the matter: prisoners sometimes escape, but (more importantly) prisoners prey on other prisoners, and furthermore prisoners who are members of large gangs and mafias continue the work of those organizations inside the prisons (e.g. threatening and silencing other prisoners who might give evidence to the state), and direct the activities of other members who are outside of the prisons. So, in fact, we CAN'T keep such criminals from ongoing crimes - provably so.
Secondly, the safety implicit in the claim - safety of society - ignores two items: the safety of those in the prison (who remain part of society), and the fact that safety of persons is not the primary, but a secondary end of punishment: a punishment lesser in degree than what is warranted by the degree of evil of the crime generally is not sufficient for justice, and to intend to be generally deficient is to intend injustice. As Pope JPII said, it is the civil authorities duty to levy punishments for the sake of justice:
Legitimate public authority has the right and the duty to inflict punishments proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense.
To willingly aim at punishments that are not proportionate to the offense is, per se, to not intend justice.
I have never seen any notable Catholic author (prelate or not) in favor of getting rid of DP even attempt to deal the first point above (that we are NOT actually able to keep people safe). And I have never seen them come up with an honest and bona fide effort to deal with the second in the sense of granting what JPII said is true about justice as the primary end of punishment, and then propose a reason why the state should never use it anyways - at least, not a reason that passes the initial sniff test as plausible; most times they simply ignore or even deny the principle.
That is: it is logically possible that there COULD be conditions in which using the DP is generally imprudent, and the Church might be in a position to say something about that. It is highly unlikely that - outside of the thousand years of peace depicted in Revelation - there could be conditions in which the DP should be entirely eradicated from the law; I would submit further that while our society as a whole fails to have even the regard for human life (including the unborn) that it had 100 years ago, eradicating the DP would stand pretty much in direct defiance of God's prescription that the DP is right and proper precisely because it attests to man's being in God's image. I.E. to the extent that we (an abortion-approving society) believe that the "DP is beneath us" for murder, to that extent we have failed to grasp what the image of God means in us, we are upside down in our grasp of the dignity of man.
I've been thinking about this sort of thing for quite a while. I'm not religious or a natural law theorist, so I'm coming at it from a different angle than many of the posters here do, I think. It might be because I'm not a natural law theorist, but I wonder what those who support the death penalty on proportionality grounds would say to the many people who argue that capital punishment is just inadmissible, period. The thing is, at least in the West, even the supporters of capital punishment generally don't support torture or mutilation as punishments - they aren't looking to abolish the Eighth Amendment in the United States, for instance - but torture is possibly the only punishment that could be remotely proportionate to certain crimes, such as murder committed through torture. So what makes the death penalty permissible and torture and mutilation impermissible?
DeleteI think Dr. Feser might have stated elsewhere that it's because having to torture someone, even someone who committed atrocious crimes, would cause too much desensitization. But killing someone doesn't have to cause it to quite that high of a level - for instance, think of soldiers. I'm not entirely sure about this, though. Executioners, unlike soldiers, have to kill those who are restrained, which might be mentally worse, and I have read reports of those who have suffered mental trauma from what they have done. There are countries without the death penalty, but I don't think there are countries that neither have soldiers nor are protected by other countries with soldiers. And is mutilation (such as cutting off someone's hand) more or less desensitizing? In fact, might not being a prison guard have a desensitizing effect? (I could mention the Stanford Prison Experiment, though I have heard it is very flawed).
To be clear, I'm not actually opposed to the death penalty in principle. The problem of prison violence is actually a good argument for keeping it around (though there are countries that have much less prison violence than, say, the US... I'm not sure how much of that is actually due to prison conditions, though, versus how much of that is due to broader societal factors that can't be changed so easily, if at all). Death is also undeniably the only way of absolutely guaranteeing (for some religious people, discounting resurrection) that someone cannot commit any more crimes, something that applies regardless of whether it does or does not deter anyone else. Note that torture cannot do this (though some forms of mutilation can hinder future crimes, such as cutting off the hands of a thief...)
What I'm really not sure about is the proportionality justification, given the issues I mentioned earlier and the fact that I don't support torture or mutilation. But are there really objective grounds for determining which punishments are permissible and which ones aren't? For instance, should all punishment be directed to rehabilitating the offender so that they can become a productive member of society (this argument is the one that tends to be used not only against the death penalty, but also life imprisonment)? I can at least understand where that sort of view is coming from, but there are some far worse anti-death penalty arguments that still regularly get used. The claim "the death penalty is murder, or the moral equivalent of murder" is really infuriating to me, because as many people have pointed out, by that sort of "logic" imprisonment is kidnapping and fines are theft... yet the people making the argument never seem to realize that. Even prison abolitionists (no, I am not a prison abolitionist, though I think it's plausible that prison conditions should be improved and imprisonment should be used less often) don't seem to compare prison to kidnapping, even though they could (it might be an interesting argument, actually...)
@ Anon 11:14: You raise a very good question, and do it very nicely as well. I attempted to address this very question at length, too long to repeat here, so I will give the link:
Deletehttps://whatswrongwiththeworld.net/2019/01/death_penalty_and_proportional.html
For instance, should all punishment be directed to rehabilitating the offender so that they can become a productive member of society (this argument is the one that tends to be used not only against the death penalty, but also life imprisonment)?
This also is a good question. I believe that people who pose this "answer" to DP miss out on some essential points. First, and critically, it used to be well understood that the most important sense of "rehabilitation" was the criminal's relationship with God: if by a penalty we can induce in the criminal that he reform his mind and heart, and turn to God before his death, he will be in union with God for all eternity, and enjoy the society of the blessed. This is rehabilitation par excellence, and union with "society". The death penalty about to be (justly) imposed on the criminal was thought to have this effect if ANY penal imposition could do so.
Secondly, as to the criminal being a "productive member of society" in the temporal sense: the anti-DP people seem to entirely disregard the criminal's role in prison, under punishment as a productive member of society. But this is clearly too dismissive, as the different impacts of a model prisoner vs. a very disruptive, very violent prisoner makes clear. There are cases of criminals who, in prison, undergo a deep conversion to God, and not only are well-behaved in themselves, but become magnets of persuasion to affect other prisoners as well. This is eminently productive WHILE in prison. Similarly, there are cases of murderers who convert to God and go to their execution singing God's praises, and attesting to the justice of their punishment so that they willingly suffer it, thereby becoming models not only for other prisoners but for people outside of prison as well.
And finally, if we mean "productive" in the narrow sense of economically worthwhile: I don't mind in the least if we were to revise prisons to enable and encourage prisoners to become gig workers whose productivity pays not only for their prison upkeep plus their just fines, but also something for them to save for later when they get out (or, if under a life sentence, something for them to contribute to society that their mere prison endurance fails to measure up so as to suffice for justice).
The claim "the death penalty is murder, or the moral equivalent of murder" is really infuriating to me, because as many people have pointed out, by that sort of "logic" imprisonment is kidnapping and fines are theft... yet the people making the argument never seem to realize that.
DeleteIndeed, you are quite correct. Similar complainers sometimes declare that "taxes are theft", but only true anarchists do so consistently, and you can't be an anarchist if you believe that man is a social being by nature.
People fail to note the difference between "using force" and "using violence". A parent who yanks a toddler out of the street from the path of a speeding car is using force, but not violence - even if he incidentally hurts the kid. A prison guard who pushes (and various other acts more strenuous and more painful) to force a fighting prisoner into a cell is using force, not violence, because the prisoner has been justly condemned to that prison cell as punishment, and society (which is natural to mankind) has the proper authority and duty to pursue justice and protect people from crimes: the force being used is not violence because that force is in accordance with man's nature as a social being, with social mores and rules and recompense for broken rules. The logic of rules implies the use of force on those who try to break the rules, and the logic of punishment implies the imposition of something contrary to the will (of the criminal). If imposing something undesirable is wrong, then ALL punishment is wrong and rules are unenforceable.
It is more plausible to argue that SOME punishments are OK in principle, but others by their very nature are not OK, ever, and that the DP lands in the latter. This would be a better argument if it were not true that we allow for killing in self defense, in defense of others, and in war: in general, natural law theory says that "killing humans" is not a kind of act that is intrinsically evil of its very nature, like rape is intrinsically evil, as there are good cases of it as well as bad cases of it.
Now that I read the link you posted, Tony, I think I may have seen it before, but if so, I forgot about it. Thanks for reminding me! So, if I understand you correctly, your argument is that the sort of thing that is inherently wrong per natural law is inflicting a degree of suffering that prevents someone from using their reason and will, which improperly treats a person as a mere tool. You're coming at this from a religious perspective, so if there is a God providing an afterlife, death does not destroy reason and will, and is therefore a permissible punishment. You also stated that even without considering an afterlife, killing someone as a punishment does not cause someone to live a degraded life without reason and will, and does not necessarily involve treating someone as a mere tool.
DeleteAlright, it seems that once someone accepts this worldview, there is indeed a way to make the case that the death penalty is permissible and (the relevant sense) of torture is not. Similarly for your discussion of rehabilitation - though in that case, nonreligious people who don't believe in an afterlife and want everyone to be in a this-worldly society couldn't exactly agree. Unfortunately, I suspect there are some people, even if few in number, who cannot live peacefully in society. The force/violence distinction... I'm not entirely sure about it, but this might be a terminological issue, as I don't consider violence inherently evil (though perhaps it is always regrettable to some extent when things have to come to it).
And again, good point about killing humans not being always wrong. Now, there are a few pacifists out there, including Christian pacifists (and I have read some of their writings)... even if I don't agree with them, they are at least consistent. What really annoys me are the people who oppose the death penalty simply because it is a form of killing, but are clearly not pacifists! I'm not a natural law theorist myself, but I think there are very few moral systems that actually state killing humans is always wrong. There are better versions of this claim, such as only allowing for defensive killings and saying that the death penalty is never necessary for defense, at least not anymore. But of course that's the sort of view you were criticizing in your original comment due to prison violence, escapes, and the like.
What I'm still wondering about, though, is what you think about non-death punishments that cause permanent damage to the body. You stated in the linked post that you do not think that corporal punishment is not inherently evil, and I get your point. Opposition to at least some forms of penal corporal punishment really does seem to often just be a matter of a completely non-rational revulsion - long-term imprisonment might be far crueler than a brief infliction of pain. But what about punishments such as a literal eye for an eye, cutting off hands, or even things like caning or whipping when they cause permanent damage? Unless I missed it, I don't think you mentioned things like these in your post, so does natural law forbid these, or not? (I think there might at least be a pragmatic reason not to use these punishments - the permanently injured person now needs resources spent to have these injuries taken care of. Of course, this consideration does not apply to the death penalty.)
You make some great points, Tony. I’ve always gone with my intuition on the death penalty because it seemed to line up with what the Church taught and that was enough for me.
DeleteSo I didn’t think much about it, and your point about the safety of other prisoners never occurred to me.
I agree that is sounds offensive to modern ears that a (acceptable) punishment might cause permanent damage to the body, as maiming or the like: an eye for an eye, a hand for hand, etc. I think that there is good reason for this modern sensibility: practical considerations (e.g. for when the person is supposed to be done with their punishment because they have served their time) would imply that a permanent damage for what should be a temporary kind of penalty doesn't make sense. (And generally we should intend the criminal to be able to be a productive member of society after his punishment, if his penalty is not meant to be a permanent one.) Furthermore, the body's integrity is important, and violating that integrity by an intentional injury is a Big Deal, it should make us wary of imposing it as punishment.
DeleteOn the other hand, speaking from the principles of equity and of proportionality, it is difficult to see how we should rule out certain kinds of penal injuries (even permanent ones) if those are highly suited to the kinds of evil the criminal caused to the victim of the crime. If a torturer cut off the hand of a victim, such that his hand cannot be restored, then it would be fitting of the penalty be in some way a permanent one also, and one that makes him unable to use his hand. So, without actually torturing him (e.g. doing it under anesthesia) it would seem that taking off the torturer's hand would be proportional and just (though there could be a lot of contingent details involved in deciding that.) And since we might take off someone's hand (if he has gangrene) not as a punishment, it would be difficult to hold that "taking off his hand is intrinsically evil". That's the argument in favor of.
I don't claim to have a definite resolution to this, as either side of the position sounds, to me, as incomplete in important ways. I think there's a HUGE difference between using corporal punishments (e.g spanking) that don't cause permanent or serious injury, and something that does cause permanent injury, and I quite agree that the mere fact of proportionality is not sufficient, by itself, to show it's ok to use that kind of punishment. I reckon we are on sure and certain ground that raping a rapist is intrinsically evil and not to be used as punishment.
I would also caution against a too-simplistic sense that long prison sentences are OK but direct bodily injury not: the violation of freedom involved in a long prison sentence (especially for life), while not intimate in quite the same way taking off a hand is, might be injurious to the psyche in a way that loss of a limb might not, and there should be no simple confidence that one WILL have a graver impact than the other.
It is true that the prospect of an afterlife might alter the balances of good vs evil in these, but it should be noted that even in this life, people with loss of a limb or an eye can have very fulfilling lives, learning to do by other means what they had done when the body was intact. So it's not like happiness becomes impossible with a lost limb or eye.
I agree with Professor completely on the principles. The death penalty is a legitimate form of punishment. I would also recommend Peter Koritansky's book where he lays down the relevant Thomistic principles.
ReplyDeleteYet at the same time I am always struck by the compassion Pope Saint John Paul II had for prisoners. Today is Prison Ministry Sunday.
If you go on the Vatican website , you'll find loads of Pope St John Paul II's visits to various prisons.
It always moves me when he says , " I read your letters". Can you imagine The Pope, one of the most powerful men on the planet, who receives letters from the heads of states of all the powerful countries of the world , taking the time out to read letters from the most despised and isolated people in society.
I do think that some extremely heinous crimes, rarest of rare cases, does deserve the death penalty.
But I suppose I respectfully would disagree with Prof, who tends to take a more pessimistic view with regards to people's capacity to be changed.
I think Pope St John Paul II and Pope Benedict XVI were man of great depth and learning.
Now Prof might say that they didn't have any relevant competence in regards to what was good for maintaining societal order and criminal justice but I do think they understood sinners, the human person and the ability of God to change hearts, because, indeed, they helped change a good many of those hearts.
Let us pray for all those priests who are tasked with Prison Ministry.
Yes, pray for them indeed. There are some EVIL people in prison who have committed heinous crimes. Some of them are highly intelligent land look just as normal as you and me. But they are monsters and deserve to die for what they did.
DeleteI haven’t read the book yet, but from, what I’ve seen him say here and elsewhere, his argument doesn’t seem to have anything to do with whether men can be reformed or not.
DeleteHe’s just arguing that saying capital punishment is always impermissible goes against Church teaching.
Besides that, whether a person can be reformed is irrelevant to the question of whether retribution is warranted. You could reform your life before you ever go to prison, that doesn’t mean you shouldn’t face punishment for your crime.
Punishment is about justice, and in some cases, justice might require the ultimate punishment regardless of rehabilitation.
Hi Wolf
DeleteAs I said, I agree with what Prof wrote. I was only disagreeing with him on the prudential issue of the efficacy of pursuing rehabilitation.
If you see I mentioned rare cases where such punishment is called for.
Although I do think you are mistaken on the part where you say "Justice Requires".
I think that, although I am not sure, that, Prof would also say that Justice is a necessary condition but it is not a sufficient condition to impose the penalty, you need justice alongside some other condition like deterrence to impose the death penalty. This is the standard position of most Thomists.
Feser complicates things needlessly. The Church's doctrine that the Death Penalty is inadmissible is rooted in the Deposit of Faith which teaches that there is a limit to the claims of the state (Give unto Caesar, etc.). As John Paul II teaches the state may not permit or promote that which gravely contradicts natural law (example abortion, euthanasia); that is exactly what the Church teaches about the Death Penalty. That it is gravely contrary to natural law. Evil in itself.
ReplyDeleteObjection: There are occasions on which the state takes lives, and this taking of lives is obviously prudent. Response: It never takes lives by its own authority out of its own power. It only takes them in name of God. This why the medievals spoke of the Secular Arm. Divine authority in special circumstances is passed to the state. But this does not demonstrate the permissibility of the Death Penalty. Sometimes the Principle of Double Effect enters into play. There are difficult cases that need discernment (cfr. the magisterial teaching of Amoris Laetitia). Saint Thomas in this regard speaks of how common good considerations can justify amputation of a member. But Feser manipulates all these texts in order to deny the thesis (teaching of the Catholic Church!) that the Death Penalty is permissible.
As regards Newman: the Catholic Teaching that the Death Penalty is inadmissible is in harmony with the seven notes of Doctrinal Development given by Newman.
> The Church's doctrine that the Death Penalty is inadmissible is rooted in the Deposit of Faith
DeleteIn that case, Scripture itself (both Old and New Testament), along with vast swathes of the Fathers and Doctors, go against the Deposit of Faith. In which case, the Catholic religion itself is falsified.
Yes, the state's power is limited, but it does not follow from this that it may not take life under certain circumstances.
Nope. It is rooted in the Deposit of Faith, and namely in Scripture which puts a limit upon the state as it tells us to render unto Caesar what is Caesar's and to God what is God's. That limit is natural law. The state may not permit or promote what is contrary to natural law, such as abortion and Euthanasia, such as the Death Penalty and Deportation. (Saint John Paul II) Deportation is the worst case of violation of the commandment "thou shalt not steal." Now if you say that one has to parse such things, I agree. Parsing the Fifth commandment, the Church, for instance has a "just war doctrine" But the exception proves the rule!
Deletethe Deposit of Faith which teaches that there is a limit to the claims of the state (Give unto Caesar, etc.).
DeleteAgreed, the Deposit of Faith teaches that there are limits to civil power.
As John Paul II teaches the state may not permit or promote that which gravely contradicts natural law (example abortion, euthanasia);
Agreed.
that is exactly what the Church teaches about the Death Penalty.
No, that is precisely NOT what the Church has said. When Pope Francis changed the Catechism to say that the DP is "inadmissible", he nowhere said this is because it contradicts natural law - that is an inference you are making from what he said. More, he also said (through his head of CDF, Cardinal Ladaria), that this change in the Catechism was NOT intended to constitute a change from prior Church teaching; and prior Church teaching was clearly that the licitness of the DP is part of the natural law. Cardinals Ratzinger and Dulles said so in the early 2000s, the earlier version of the Catechism said so, etc. And this teaching itself came from the Deposit of Faith: this is what the Church and the Fathers taught was the meaning of Romans 13:1-4, that the "power of the sword" belongs to the state under the natural law. This NT teaching reaffirmed the OT teaching found throughout Exodus, Leviticus, and Deuteronomy, but was found earlier, in Genesis: When God at 9:6 told Noah that death was the punishment for murder, he did not phrase it as "I hereby grant you special license, outside of the natural law, for this special punishment". Rather, he explained the DP as being based explicitly on man's nature, made in God's image. It is part of the natural law not only that the murderer deserves death, but that the civil authority of man is the natural locus of the power to execute that punishment. This is how the Fathers and Doctors understood the passage.
And this declaration in Genesis 9:6 reaffirms an earlier testimony of Cain in Genesis 4, when he declares his understanding of his situation, "whoever finds me will kill me", and God does not rebuke this conclusion as being erroneous, he rather confirms its basic accuracy as a testament to natural law, but instead he applies a special, one-time protection to Cain to avoid the natural consequence.
Response: It never takes lives by its own authority out of its own power. It only takes them in name of God. This why the medievals spoke of the Secular Arm.
All power, whether civil or otherwise, comes from God, as Paul says in Romans 13. But civil power comes to the state through the operation of natural law, not through special grant from the Church or by unique Divine interventions outside of nature. The state doesn't "take" the powers it has, it receives them from God, through man's nature. As the Deposit of Faith shows us, that power includes the power to punish by just punishments, and Paul in Romans shows that this natural power extends to punishment by the sword, i.e. to DP. And Paul applies this to the Roman state (at that time not a Christian state), which did not receive powers or authorities from the apostles (or their successors the bishops) as that Roman power received its civil authority in the manner all civil authority is received by the state. Even when the state (like the pagan Roman state) didn't acknowledge the one, true, living God, even then that state has the power to exercise judgment unto death, because that power belongs to it under the natural law, as Paul indicated.
Newman following Scripture and Tradition speaks of Transfer and Sanction. But this implies that the state does NOT have right and prerogative to practice to render capital punishment upon capital offenses. Rather, right and prerogative are received in special situations (determined in natural law terms by double effect or similar) Amoris Laetitia speaks of such special circumstances also in a context of the common good (the twofold good of marriage) in which one may act for the common good without violating morality. How? following commandment and prudence through discernment and with guidance from the pastors of the Church (Transfer and Sanction).
ReplyDeleteI agree with David McPike, which is kind of why I don’t really understand why this debate engenders so much hostility. Natural law sets out competing principles: human life must be protected, criminals must be stopped, and the unjust must be punished. In St. Paul’s day, and indeed for most of human history, it was not possible to stop crime or punish the unjust without the death penalty. States and law enforcement were so weak that we would consider the situation anarchic. This was even true of Rome, which had a major bandit problem throughout its entire history.
ReplyDeleteNow we find ourselves in a different situation, with relatively powerful police forces, surveillance cameras, 911, working courts, jails that are virtually impossible to escape, and so on. Even America’s relatively high homicide rate is several orders of magnitude better than our best estimates on murder rates in premodern civilizations. Given that a large majority of crime can now be suppressed and most wrongdoers punished to some extent without the death penalty, it would seem entirely logical that the protection of human life should take priority.
This leads us to debates about whether our justice system is really “good enough” and whether the death penalty is “really” needed. I find these debates uninteresting because they are ultimately debates about sociology, and the magisterium has no special competence there. What the magisterium has said is that when the DP is not necessary, human life is the priority, and that seems to resolve 1) 99% of actually existing death row cases in our legal system and 2) be entirely consistent with the legitimate development of doctrine.
So, what about this claim-“Capital punishment isn’t intrinsically immoral, but it is intrinsically suberogatory”-I wonder what Newman et al would say to that? For those who are unfamiliar with the concept of the suberogatory-just as the supererogatory is acts which are morally praiseworthy but non-obligatory, the suberogatory is acts which are morally criticised or recommended against but not morally prohibited; performing a suberogatory act does not incur moral guilt or blame per se, more a kind of milder moral criticism of “imperfect but tolerable”-so this is saying capital punishment is always morally imperfect, but only sometimes to a culpable or sinful degree of moral imperfection
ReplyDeleteThis would be a cool way of dividing up the categories, but it's not easy to make it work well. In Catholic circles, "superogatory" includes the "counsels", such as the vows of chastity (celibacy), poverty, and obedience that those in religious orders take: they are not necessary for perfection, but they are a kind of divinely appointed royal road toward perfection, a pathway of high regard because it is, generally, the more certain pathway (among other reasons). It is, however, exactly NOT the pathway that most people are called to: most people are actually called to be parents, which precludes celibacy and generically obviates the religious form of poverty (owning NO goods at all, not just few). That is, these counsels not only are not required for all, they are not what most are called to, and in many cases they would be not good for the specific individual's own perfection.
DeleteAs I take it, the idea of the developed doctrine suggested by Anon @9:04pm Aug 13 is that DP is licit in principle but is ALWAYS to be not-preferred if other means will preserve safety of persons, and indeed most supporters of the Francine change to the Catechism would put the "always not preferred" as a definitive moral directive, not as a counsel which leaves you morally free to choose the other alternative: in most cases (i.e. where it is possible to keep people safe), it would be WRONG to choose DP, not merely not the best choice.
The more rooted Church teaching is that contained in the Catechism where it says that it pertains to the civil authorities as both a right and a duty to punish malefactors with proportionate punishments, and more specifically that the primary purpose is that of redress of the offense (what is ordinarily called the "retributive end" of punishment). While safety is another important concern of the state, and both safety and proportionate punishments can usually be pursued simultaneously in full measure, in the case of the DP (so the argument goes), the retributive goal exceeds the needs of safety. And in this case (according to the recent proposals) the state "should" restrict itself to a punishment limited to that needed for safety. I would suggest that this idea WOULD become a "development" if someone, somewhere, would propose a logical formulation by which a secondary end of punishment supersedes the primary end of punishment, thereby making sense of preferring a safety-penalty that FALLS SHORT of proportionate redress as to be preferred as punishment.