Capital Punishment and the Infallibility of the Ordinary Magisterium, by Dr Edward Feser

The first of the two articles that Dr Feser mentions in Francis and Capital Punishment. He comes to the same conclusion, the Church infallibly accepts the morality of capital punishment, but he includes arguments against some theologians who uphold Francis' error.

From Catholic World Report

A demonstration that it has been infallibly taught by the ordinary magisterium of the Church that the death penalty is not intrinsically wrong. Not even a pope can reverse this teaching.

When discussing Church teaching on the death penalty, two questions have to be carefully distinguished. First, is capital punishment legitimate at least in principle, or is it always and intrinsically wrong? Second, even if capital punishment is legitimate in principle, does Catholic teaching allow for it in practice today, and if so, under what conditions? In this article, I will be addressing only the first question. What I will show is that it has been infallibly taught by the ordinary magisterium of the Church that the death penalty is not intrinsically wrong. Not even a pope can reverse this teaching.

This is a proposition that Joseph Bessette and I defend at length in our book By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment. Among our key arguments is the argument from scripture. The Church holds that scripture is divinely inspired and therefore cannot teach error on matters of faith and morals. She also holds that the Fathers of the Church cannot be wrong when they agree about some matter of scriptural interpretation. But as we show in the book, scripture clearly teaches that capital punishment can be legitimate in principle, and the Fathers are agreed that scripture teaches this. It follows that the legitimacy in principle of capital punishment is a divinely inspired and thus irreformable teaching.

Some critics of our book resist this conclusion. Catholic theologian E. Christian Brugger has long argued that the Church could condemn the death penalty as wrong always and in principle, and defends this position in a response to our book. Catholic theologian Robert Fastiggi also claims that “there is no definitive, infallible teaching of the Church in favor of the legitimacy of capital punishment” and thata condemnation of the practice as “intrinsically evil… is theoretically possible.” Eastern Orthodox theologian David Bentley Hart argues that, whether or not the death penalty is in principle permitted by natural law, the higher demands of the Gospel nevertheless rule it out absolutely.

The focus of these critics has been on attempts to reinterpret various passages from scripture or statements from the Fathers, and to minimize the significance of individual papal and other magisterial statements of the past. In earlier articles responding to Brugger, Fastiggi, and Hart, I have shown that these attempts fail. But there is also a forest the critics miss when they fixate on these individual trees. That forest is the ordinary magisterium of the Church – the everyday teaching of popes, bishops, and ecclesiastically approved theologians as they convey the Faith in encyclicals, sermons, books, and the like. Yes, unambiguous scriptural passages and ex cathedra papal declarations are among the places to look for irreformable Church teaching. But they are by no means the only places. The Church holds that the ordinary magisterium can also teach infallibly under certain circumstances.

What I will show in what follows is that the ordinary magisterium of the Church clearly teaches not only that the death penalty is legitimate in principle under natural law, but also that even the Gospel does not rule it out absolutely. And again, I will show that the ordinary magisterium has taught these things infallibly. (Of course, a non-Catholic theologian like Hart will not be moved by an appeal to the ordinary magisterium of the Catholic Church. But Catholic theologians like Brugger and Fastiggi cannot dismiss such an appeal.)

When does the ordinary magisterium teach infallibly?

The 1990 document Donum Veritatis, issued by the Congregation for the Doctrine of the Faith (CDF) under Cardinal Joseph Ratzinger, allows that there are cases when the ordinary magisterium does not teach infallibly. However, in section 24 it also points out:

But it would be contrary to the truth, if, proceeding from some particular cases, one were to conclude that the Church’s Magisterium can be habitually mistaken in its prudential judgments, or that it does not enjoy divine assistance in the integral exercise of its mission. (Emphasis added)

A “prudential judgment” involves the application of a general principle of faith or morals to a concrete situation. What the document is saying is that though the magisterium can err in an individual prudential judgment, the “divine assistance” that it enjoys precludes its being “habitually mistaken” in its prudential judgments.

Now, if the divine assistance enjoyed by the Church precludes habitual error even in prudential applications of general principles of faith and morals, then a fortiori it precludes any habitual error in the teaching of general principles of faith and morals themselves. Hence the clear implication of Donum Veritatis is that if the Church has been teaching something for two thousand years, then that teaching cannot be mistaken. For such an error would be of the “habitual” kind ruled out by the divine assistance enjoyed by the Church.

In 1998, the CDF under Cardinal Ratzinger issued a doctrinal commentary on the profession of faith required of those assuming an office in the Church. Sections 5 and 6 of the commentary make it clear that there are “teachings belonging to the dogmatic or moral area” which, even though they have “not been proposed by the Magisterium of the Church as formally revealed,” nevertheless “can be taught infallibly by the ordinary and universal Magisterium of the Church.” The commentary draws the conclusion that:

Every believer, therefore, is required to give firm and definitive assent to these truths, based on faith in the Holy Spirit’s assistance to the Church’s Magisterium, and on the Catholic doctrine of the infallibility of the Magisterium in these matters. Whoever denies these truths would be in a position of rejecting a truth of Catholic doctrine and would therefore no longer be in full communion with the Catholic Church. (Emphasis in original)

Note that the commentary is not speaking here of doctrines which have been explicitly and solemnly defined as divinely revealed, such as the doctrine of the Trinity. Obviously, firm and definitive assent is due doctrines of that sort, but what the commentary is saying is that such assent is also due many teachings which have not been defined in this way. In section 9, the commentary adds:

[W]hen there has not been a judgment on a doctrine in the solemn form of a definition, but this doctrine, belonging to the inheritance of the depositum fidei, is taught by the ordinary and universal Magisterium, which necessarily includes the Pope, such a doctrine is to be understood as having been set forth infallibly.

In footnote 17 the commentary adds the further remark:

[T]he infallible teaching of the ordinary and universal Magisterium is not only set forth with an explicit declaration of a doctrine to be believed or held definitively, but is also expressed by a doctrine implicitly contained in a practice of the Church’s faith, derived from revelation or, in any case, necessary for eternal salvation, and attested to by the uninterrupted Tradition… [T]he intention of the ordinary and universal Magisterium to set forth a doctrine as definitive is not generally linked to technical formulations of particular solemnity; it is enough that this be clear from the tenor of the words used and from their context. (Emphasis added)

In section 11, the commentary gives several examples of teachings of the sort to which it is referring. One particularly noteworthy example is “the declaration of Pope Leo XIII… on the invalidity of Anglican ordinations.” Another is “the doctrine on the illicitness of euthanasia,” which the commentary says is binding even though “Scripture does not seem to be aware of the concept.”

The reason these examples are noteworthy is that they concern teachings that are relatively recent and not directly grounded in scripture. If even these teachings must be given “firm and definitive assent” by the faithful on pain of breaking “full communion with the Catholic Church,” then it follows a fortiori that a teaching which isdirectly grounded in scripture and has been consistently taught for two millennia would also require such assent.

Older magisterial statements point in the same direction. For example, section 12 of the Vatican II document Lumen Gentium teaches:

The entire body of the faithful, anointed as they are by the Holy One, cannot err in matters of belief. They manifest this special property by means of the whole peoples’ supernatural discernment in matters of faith when “from the Bishops down to the last of the lay faithful” they show universal agreement in matters of faith and morals.

Now, in other contexts in which the Church attributes theological significance to unanimity (as when the First Vatican Council teaches that scripture cannot be interpreted contrary to the “unanimous consent of the Fathers”), theologians commonly understand this to entail only a “moral unanimity” rather than that literally every single member of a group affirm a certain opinion. If that is true even of the Fathers, it is obviously going to be true of the vastly larger group that is the Church as a whole. Lumen Gentium is not speaking of a case where literally every single Catholic affirms something, for there very well may be no such case given that there are always some Catholics who have heretical opinions, etc. What it is saying is that if some belief about faith or morals is virtually universal in the Church – held more or less by every Catholic whether priest or layman, educated or uneducated, etc. – then this belief cannot be mistaken, given the divine guidance enjoyed by the Church.

It also cannot be that Lumen Gentium is ruling out the possibility that there will be periods where the Church largely falls into error in a temporary way. This happened during the Arian crisis, and the Church has always taught that there will be a great apostasy from the Faith in the last days. The point is evidently rather that, like the ordinary magisterium, the faithful as a whole cannot fall into error “habitually,” to use the language of Donum Veritatis.

The teaching of Lumen Gentium therefore implies that if some belief concerning faith or morals is virtually universal in the Church for millennia, then that belief cannot be in error. For persistence in theological or moral error for such a prolonged period of time would be the habitual kind which Lumen Gentium says the faithful as a body are preserved from.

What is true of the faithful as a whole is also true of theologians as a whole. In Tuas Libenter, Pope Pius IX wrote:

[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)

Of course, theologians are not infallible as individuals, and as with the faithful as a whole, it is possible for theologians even as a body to fall into error temporarily, as they would if they were to teach contrary to the ordinary and universal magisterium of the Church. But Tuas Libenter holds that when there is “common and constant” agreement among theologians about some matter of faith and morals that is in harmony with the ordinary magisterium of the Church, then Catholics are obliged to assent to their teaching. The idea would be that when not only the ordinary magisterium of the Church, but even those Catholics most highly educated in matters of faith and morals, all agree for a very long period of time that something is part of the Faith, then they cannot be mistaken. The divine assistance enjoyed by the Church would not allow the Church for millennia to fall into a moral or theological error that is so deep that not only the Church’s ordinary magisterium, but even the learned theologians who are called to assist the magisterium, would collectively fail to see it.

Now, there can be no doubt that the ordinary magisterium of the Church has consistently taught not only that capital punishment is legitimate at least in principle, but also that it is legitimate at least in principle for Christians, specifically, to resort to it. In other words, the magisterium has taught that the death penalty is not intrinsicallycontrary to either natural law or the Gospel. And there can be no doubt that the ordinary magisterium has taught these things in a way that meets the criteria for infallibility just set out.

Capital punishment in the ordinary papal magisterium

First of all, there can be no doubt that the ordinary papal magisterium has taught these things in a way that meets the criteria for infallibility. Let’s briefly review some of the evidence (which Joe Bessette and I set out in much more detail in our book).

In 405, an inquiry was made to Pope St. Innocent I about whether civil authorities could, after converting to Christianity, continue to inflict the death penalty. His response was that they could do so, and he alluded to Romans 13 as evidence that this judgment has divine authority behind it. He thereby rejected the suggestion that the higher demands of the Gospel required Christians to endorse an absolute prohibition on capital punishment.

In 1210, Pope Innocent III required of the Waldensian heretics, as one of the conditions of their reconciliation with the Church, that they affirm that the death penalty can “without mortal sin” be inflicted. Now, the Waldensians had claimed that the Gospel requires Christians to refrain from violence and from punishing evildoers. It was their interpretation of the higher demands of Christian morality, specifically (as opposed to natural law), that motivated their opposition to capital punishment. Pope Innocent, then, was essentially rejecting as heterodox this interpretation of the demands of the Gospel.

In 1566, at the order of the Council of Trent, Pope St. Pius V promulgated the Roman Catechism. This was an official manual of Catholic teaching intended to offer sound moral and doctrinal guidance to the universal Church for generations. The catechism not only affirms that the state can legitimately execute criminals, but teaches that “the just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder” (emphasis added). The reason is that by “punish[ing] the guilty” in this way, the state thereby “protect[s] the innocent” (emphasis added). In other words, the catechism considers and explicitly rejects the claim that respect for scriptural teaching on the sanctity of life should lead us to reject the death penalty. It does so on the grounds that the lives of the innocent take precedence over those of the guilty. And it teaches this, not only by way of expounding some abstract point of natural law, but for the purpose of instructing the Christian faithful about what is morally required of them.

In 1912, the Catechism of Christian Doctrine was issued by Pope St. Pius X. In its discussion of the scriptural commandment against murder, this catechism teaches that “it is lawful to kill… when carrying out by order of the Supreme Authority a sentence of death in punishment of a crime.” Note that the catechism thereby rejects the suggestion that capital punishment is incompatible with a consistent application of the Fifth Commandment. And, as a catechism, it presents this teaching as practical guidance to the Christian faithful, and not merely as speculation about what might be theoretically possible under natural law.

Pope Pius XII, in a series of addresses in the 1940s and 1950s, had more to say about the subject of crime and punishment than perhaps any other pope in history. Joe Bessette and I quote from and analyze his various statements at length in our book (at pp. 128-34). I would urge readers unfamiliar with this material to study it carefully, because it is both radically out of step with what many contemporary Catholics think about punishment, and also expressed and argued for in a much more detailed and systematic way than more recent papal statements on the subject.

In a 1953 address, Pius taught that “the most important function” of punishment in general is the securing of retributive justice. He considers and explicitly rejects the thesis that in modern times, punishment should be understood instead primarily as a “protective measure” oriented to the “defense of the community.” The traditional retributive conception of punishment, the pope taught, is the “more profound” one, and in its defense he cites Romans 13 and also the fact that at the last judgment, the protective function of punishment will disappear but the retributive function will remain. Pius also taught that punishments “should correspond to the gravity of the crimes.” For example, “in the case where human life is made the object of a criminal gamble,” to inflict on the evildoer “a mere privation of civil rights” would, the pope taught, “be an insult to justice.”

In a 1954 address, Pius XII once again defended the thesis that punishment is primarily a matter of retributive justice, and he emphasized that its point is to inflict a harm on the offender himself because he deserves it, rather than being merely a response to the offender’s actions. He considers and explicitly rejects the idea that the focus on retribution is no longer applicable in modern society, arguing that the retributive conception “is more in agreement with what the sources of revelation and traditional doctrine teach” and that “it is not a sufficient reply to this assertion to say that [these] sources contain only thoughts which correspond to the historic circumstances and to the culture of the time.” Pius also once again emphasized that “the law of retaliation would inflict a proportionate evil on the culprit” (emphasis added).

On several occasions, Pius XII taught that capital punishment, specifically, can be an appropriate punishment for the gravest offenses. For example, in a 1954 address, he taught that “it is reserved… to the public authority to deprive the criminal of the benefit of life when already, by his crime, he has deprived himself of the right to live.” This teaching was presented as having contemporary application, and not merely as abstract speculation about what might be theoretically possible under natural law.

The Catechism of the Catholic Church promulgated by Pope St. John Paul II, like the Roman Catechism, is intended to provide the universal Church with a sound moral and doctrinal guide. It reaffirms Pius’s teaching that punishment ought to be “proportionate to the gravity of the offense,” and that the “primary aim” of punishment in general is “redressing the disorder introduced by the offense,” i.e. it is essentially and always retributive, even when other ends (such as the protection of society) are also in view. The catechism also explicitly reaffirms the traditional teaching that capital punishment can be legitimate, even if it states that this penalty should only be applied when absolutely necessary.

Like the Roman Catechism and the catechism issued by Pius X, the catechism issued by John Paul II is meant to give guidance for the Christian faithful and not merely to speculate about what natural law makes possible theoretically. And it explicitly allows that the death penalty can in some cases be inflicted. Of course, it is true that the catechism also says that the cases in which capital punishment is called for are “very rare, if not practically nonexistent.” The point for present purposes, though, is that the catechism not only does notteach that capital punishment is intrinsically contrary to the Gospel, but explicitly teaches the opposite insofar as it allows that Christians can resort to the death penalty under certain circumstances.

It is important to note as well that the catechism here simply reiterates the teaching of an encyclical, Pope John Paul II’s Evangelium Vitae. Commentators routinely emphasize that the pope was opposed to capital punishment in practice, but they too often ignore the fact that even John Paul II did not reverse, but indeed reaffirmed, the traditional teaching that the Gospel does not rule out capital punishment in an absolute way. And he did so in documents having a high degree of authority.

For over fifteen centuries, then, the popes have consistently taught not only that capital punishment is not intrinsically wrong, but also that it is not intrinsically wrong for Christians, specifically, to resort to it. It is true that none of the individual statements just cited is an ex cathedra statement, but that is beside the point. For again, the Church teaches that the ordinary magisterium cannot be “habitually” mistaken in matters of faith and morals, and it would have been habitually mistaken if capital punishment is either intrinsically contrary to natural law or intrinsically contrary to the Gospel.

Furthermore, the Church teaches that Catholics must give “firm and definitive assent” even to teachings like the immorality of euthanasia and the invalidity of Anglican ordinations, even though these teachings have not been solemnly defined, are not directly attested to in scripture, and have been explicitly taught by the magisterium only relatively recently. How much more, then, must the faithful give such assent to the legitimacy in principle of the death penalty, which is directly attested to in scripture, and which is also attested to in over fifteen centuries of consistent papal teaching?

The gravity of the error into which the popes would have been leading the faithful, if capital punishment were intrinsically evil, is difficult to overstate. If capital punishment is always and intrinsically wrong, then it is a species of murder, which is nothing less than one of the “four sins that cry to heaven for vengeance.” If capital punishment is always and intrinsically wrong, then the Church has also been badly misinterpreting the sizable number of scriptural passages spread across the Old and New Testaments that seem to permit capital punishment. In other words, she has for two millennia been badly misunderstanding both natural law and divine revelation. These would be habitual grave errors concerning fundamental principles of faith and morals, and not mere prudential application of such principles.

Another point bears emphasis. Those who would like the Church to reverse her traditional teaching on capital punishment have deployed a number of lines of argument. For example, some have argued that a consistent respect for the Fifth Commandment should lead us to condemn capital punishment no less than abortion, euthanasia, and other forms of murder. Some have argued that the higher demands of the Gospel rule out Christian participation in capital punishment. Some have argued that in modern times punishment should be concerned only with protection against potential future crimes, and not with retribution for past crimes. Some have argued that the lives of the innocent and the guilty are equally inviolable.

It is striking that every one of these lines of argument has, as we have seen, already been explicitly considered by the papal magisterium over the centuries and explicitly rejected by that magisterium. So, if capital punishment really is after all intrinsically contrary to either natural law or the Gospel, then things are even worse that what has been said so far indicates. For in that case, it is not that the popes didn’t have the evidence or argumentation that would have led them out of grave error. It’s that they did have the relevant evidence and argumentation, and still got it wrong for nearly two millennia.

Error this massive and this persistent is simply not possible if the ordinary magisterium of the Church has the divine assistance that the Church claims for it. Thus do we have the following argument for the infallibility of the Church’s traditional teaching that capital punishment is intrinsically contrary neither to natural law nor to the higher demands of Christian morality:

1. If capital punishment were intrinsically contrary either to natural law or to the higher demands of Christian morality, then the ordinary magisterium of the Church has for nearly two millennia been massively and habitually in error.

2. But the ordinary magisterium of the Church cannot be massively and habitually in error.

3. Therefore, capital punishment is not intrinsically contrary either to natural law or to the higher demands of Christian morality.

To this we can add a further argument from the ordinary papal magisterium. The First Vatican Council taught that, even when exercising his extraordinary magisterial authority in the making of an ex cathedra proclamation, the pope cannot introduce novel teachings:

For the Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles. (Emphasis added)

Now, what is true of the pope when he exercises the fullness of his teaching authority can hardly be less true of the pope when he exercises the merely ordinary papal magisterium. In other words, if he cannot teach some novel doctrine even when he speaks ex cathedra, then he cannot do so when making a doctrinal statement of some lesser degree of authority. But if a pope were to teach that capital punishment is intrinsically evil, then he would be teaching some novel doctrine, since this would contradict what scripture, the Fathers of the Church, and all his predecessors have taught. Therefore, no pope has authority to teach such a thing.

This further argument can be summarized as follows:

1. A pope has no authority to introduce a new doctrine even when he speaks ex cathedra.

2. If he cannot do something even when speaking ex cathedra, then a fortiori he cannot do it in a magisterial statement of lesser authority.

3. But every other magisterial statement is of lesser authority.

4. So the pope has no authority to introduce a new doctrine in any magisterial statement.

5. But to condemn capital punishment as intrinsically evil would be to introduce a new doctrine.

6. So a pope has no authority to condemn capital punishment as intrinsically evil.

Capital punishment in the Doctors of the Church and other theologians

These arguments, I maintain, decisively refute the claim that the Church could teach that capital punishment is intrinsically wrong or intrinsically contrary to the Gospel. But let’s bounce the rubble a little further.

The teaching of a saint who is classified as a Doctor of the Churchhas a special authority. The Doctors have that title because they are held by the Church to possess so penetrating an understanding of the Faith that Catholics can regard them as safe guides in matters of doctrine and morals. To count as a Doctor, a writer has to meet three criteria: a high degree of personal sanctity; eminence in learning; and official recognition by the Church (such as a formal conferral of the title “Doctor” by a pope or council).

Given this formal recognition by the Church, the teaching of the Doctors is clearly an extension of the ordinary magisterium. And while the Doctors are not individually infallible, it would be quite absurd to believe that they could all be wrong on some matter about which they are in agreement. Again, they are all noted, first, for their high degree of sanctity. So how could all of them be wrong about some matter of Christian morality? They are noted, second, for their eminence in learning, and in particular for their deep understanding of scripture and Christian doctrine. So how could all of them fall into error on some point of doctrine or scriptural interpretation? Third, they are formally recognized by the Church as safe guides to faith and morals. So how could they 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).

Now, as Joe Bessette and I show in our book, the Doctors of the Church who happen also to be Fathers of the Church and who comment on the subject of capital punishment all agree that the practice is legitimate at least in principle (even if some of them urge against its use in practice). In particular, this is true of St. Ephraem, St. Hilary, St. Gregory of Nazianzus, St. Ambrose, St. Jerome, St. John Chrysostom, and St. Augustine. As I noted in the reply to Hart linked to above, Ambrose and Augustine link this judgment to their understanding of Romans 13.

The Doctors who wrote on this subject after the patristic period not only consistently reaffirm the legitimacy in principle of capital punishment, but also consistently affirm that it is legitimate in principle even for Christian rulers, specifically, to resort to the practice. One finds this view taken by St. Bernard of Clairvaux, St. Thomas Aquinas, St. Peter Canisius, St. Robert Bellarmine, and St. Alphonsus Liguori. They also consistently ground this judgment in scripture.

Hence, St. Bernard writes:

The knights of Christ may safely fight the battles of their Lord, fearing neither sin if they smite the enemy, nor danger at their own death… The Lord freely accepts the death of the foe who has offended him, and yet more freely gives himself for the consolation of his fallen knight.

The knight of Christ, I say, may strike with confidence and die yet more confidently, for he serves Christ when he strikes, and serves himself when he falls. Neither does he bear the sword in vain, for he is God’s minister, for the punishment of evildoers and for the praise of the good. If he kills an evildoer, he is not a mankiller, but, if I may so put it, a killer of evil. He is evidently the avenger of Christ towards evildoers and he is rightly considered a defender of Christians. (Emphasis added)

Now, St. Bernard is addressing warfare rather than capital punishment as usually understood, but notice that he is defending the infliction of death in warfare precisely as a punishment, and doing so on the basis of Romans 13 (to which he is clearly alluding in the words italicized in the second paragraph). He is saying that a certain kind of warfare is justifiable in part because it amounts to a kind of capital punishment. And he is saying not only that such punishment is legitimate in principle under natural law, but that the Christian – the “knight of Christ” – can legitimately inflict it.

Aquinas is known as the Universal or Common Doctor of the Church, and his preeminent status has been affirmed and reaffirmed in a long series of papal statements. For example, Pope John XXII said that Aquinas “enlightened the church more than all the other doctors.” Pope St. Pius V characterized his work as “the most certain rule of Christian doctrine.” Pope St. Pius X taught that “one may not desert Aquinas, especially in philosophy and theology, without great harm.” Pope Benedict XV wrote that Aquinas’s doctrine “should be followed in a special way at all times.” Pope Pius XI taught that “as innumerable documents of every kind attest, the Church has adopted his doctrine for her own.” And so on and on.

In our book, Joe Bessette and I quote several passages in which Aquinas teaches that rulers, including Christian rulers, can legitimately inflict a penalty of death for sufficiently grave crimes. In a couple of places, he explicitly cites Romans 13 in defense of this judgment (Summa Contra Gentiles III.146.6; Lectures on the Letter to the Romans, chap. 12, lect. 3).

A catechism is meant to give Catholics a reliable guide to faith and morals, and St. Peter Canisius is known as the Doctor of the Catechism or Doctor of Catechetical Studies. In his own catechism, Canisius defends the legitimacy of capital punishment by appealing to scripture, including Genesis 9:6 (“Whoever sheds the blood of man, by man shall his blood be shed”).

Among all the Doctors of the post-medieval era, St. Robert Bellarmine was perhaps the one to have written most systematically and at length about how Christian principles apply within a modern political order. The key work here is his De Laicis, or the Treatise on Civil Government, in which he devotes an entire chapter (chapter 13) to defending the thesis that “it is lawful for a Christian magistrate to punish with death disturbers of the public peace.” Bellarmine argues in part from scripture – citing, among other texts, Genesis 9:6 and Romans 13 – in part from the authority of the Church Fathers, and in part from natural law. He considers and explicitly rejects the hypothesis that the Genesis passage was meant merely as a proverb rather than a precept. He also considers, and argues at length against, the claim that capital punishment is ruled out by the Sermon on the Mount.

St. Alphonsus Liguori is known as the “Prince of Moralists” and is the patron saint of confessors and moral theologians. His authority on matters of Christian ethics is hard to overstate. As one commentator notes, Pope Gregory XVI “decreed it safe to follow St. Alphonsus’ opinion, even if you do not know the reason behind it – a badge of honor Rome has given no other saint” (Fr. Joseph Maier, quoted in Fr. Christopher Rengers, The 33 Doctors of the Church).

Now, in Chapter V of his book Instructions for the People, St. Alphonsus writes:

It is lawful to put a man to death by public authority: it is even a duty of princes and of judges to condemn to death criminals who deserve it; and it is the duty of the officers of justice to execute the sentence; God himself wishes malefactors to be punished.

In his treatment of the Fifth Commandment in his Theologia Moralis, St. Alphonsus grounds the legitimacy of capital punishment in scripture, including a reference to Romans 13. Like the other Doctors just cited, St. Alphonsus is here providing moral guidance for the Christian faithful, not merely speculating about what might be theoretically possible under natural law.

The opinion of the Doctors was shared, historically, by other ecclesiastically approved theologians. As I have emphasized elsewhere, even Brugger concedes in his book Capital Punishment and Roman Catholic Moral Tradition that there existed a “patristic consensus” on the legitimacy in principle of capital punishment and on the grounding of this teaching in scripture, particularly Romans 13. This was so despite the opposition of some of the Fathers to Christians making actual use of capital punishment. Brugger also notes that by the end of the Middle Ages, a “Catholic consensus” had emerged that abandoned the reservations of these Fathers, and which continued to regard the legitimacy of the death penalty as the teaching of scriptural passages such as Romans 13. This consensus persisted until very recently. Brugger surveys a large number of manuals of moral theology and other theological works from the nineteenth and early twentieth centuries, and writes:

These manuals and other works are a representative sample of the positions held and taught by members and scholars of major Catholic religious orders, including the Jesuits, Dominicans, and Redemptorists. They served as episcopally mandated and approved sources for the formation of Catholic consciences for clergy and laity alike. Several are even published with letters of commendation for the author from the reigning pope. Thus, although their contents are not necessarily authoritative de jure, their wide influence and distribution make their teachings effectively authoritative.

The first thing a reader notices in these works is the overwhelming consensus on the morality of capital punishment… And all teach that capital punishment is needful for maintaining and defending the common good…

The manuals and textbooks appeal to the testimony of Scripture [and] Church tradition… (pp. 125-26, emphasis added)

So overwhelming was this consensus that, as Brugger observes, “abolitionism – as a social movement to abolish capital punishment – became associated in the minds of many Catholic thinkers with opposition to orthodox belief and to the Church” (p. 131, emphasis added).

Brugger, again, is someone who thinks the Church can and should teach that the death penalty is intrinsically evil, so these concessions are significant coming from him. Indeed, it is difficult to overstate their significance. For if capital punishment really were after all intrinsically contrary to either natural law or the Gospel, then given the consensus Brugger describes, it would follow that ecclesiastically approved theologians were for centuries, collectively leading the faithful into grave moral error and were for centuries, collectively guilty of badly misinterpreting scripture. It would follow that even St. Thomas, the Common Doctor whose teaching is “the most certain rule of Christian doctrine”; even St. Alphonsus, the patron saint of moral theologians and the safest of guides to ethical questions; and all the other Doctors too, were all collectively guilty of teaching grave moral error and of badly misinterpreting scripture. Again, if Brugger and Fastiggi are right, it could turn out that they were all guilty of nothing less than leading the faithful to approve of a species of murder, one of the sins that cries out to heaven for vengeance!

But such a supposition is simply not consistent with the teaching of Pius IX on the authority of the consensus of ecclesiastically approved theologians, or with the authority that the Church attributes to consensus of the Doctors of the Church.

Consider also that during the long period of Catholic consensus on the death penalty described by Brugger, the views of priests and laity would not have differed from those of theologians and the hierarchy of the Church. For their views would have been formed either directly or indirectly by ecclesiastically approved manuals of the sort that Brugger says are notable for their “overwhelming consensus on the morality of capital punishment.” Hence if it turned out that capital punishment really was after all intrinsically contrary to either natural law or the Gospel, then it would follow that for centuries the entire body of the faithful did err on a matter of faith and morals. But that is not consistent with the teaching of Lumen Gentium.

Destroying the village in order to save it

Theologians like Brugger and Fastiggi try to minimize papal statements and traditional scriptural interpretations like the ones cited above, on the grounds that they are fallible. But as I have argued, they thereby miss the point. If an individual marble weighs less than an ounce, it doesn’t follow that a whole bag of marbles could weigh less than an ounce. Similarly, even if this or that individual papal statement or scriptural interpretation is fallible, it doesn’t follow that two millennia of ordinary magisterial teaching could be fallible. It is not enough, then, for Brugger or Fastiggi to cast doubt on various particular papal statements or scriptural interpretations (though as I have argued elsewhere, they fail to do even that much). In order to justify their claim that the Church could reverse her traditional teaching on capital punishment, they would have to show that it is possible for the ordinary magisterium to be wrong even when it has consistently taught something for millennia. But as we have seen, that is not possible.

Fastiggi in particular seems motivated at least in part by a desire to defend Pope Francis’s statements on the death penalty, some of which seem to conflict with traditional teaching. His loyalty to the Holy Father is admirable, but this way of showing it is misguided. For one thing, the pope’s statements on this subject are persistently ambiguous. Joe Bessette and I analyze a number of Francis’s remarks about capital punishment at length in our book, and I devoted a recent Catholic Herald article to his most recent statement. As we have shown, while Pope Francis has certainly said things that appear to imply a reversal of traditional teaching, he has also said things that point in the opposite direction. Furthermore, the pope is also prone to making obviously exaggerated remarks on this subject. For example, in a 2015 letter, Pope Francis approvingly quoted a remark he attributed to Dostoyevsky to the effect that “to kill a murderer is a punishment incomparably worse than the crime itself” (emphasis added). In that same letter and elsewhere he has also condemned life imprisonment. Does that mean that Catholics are obliged to consider the Nuremberg judges who sentenced Nazi war criminals to death as “incomparably worse” than the Nazis themselves? Does it mean that these war criminals should not have been punished even with life sentences, let alone death? Presumably not, but then it is not clear what we are supposed to take away from the pope’s remarks.

For another thing, the pope’s remarks about capital punishment are part of a larger pattern of statements, on a variety of subjects, that are ambiguous, exaggerated, and doctrinally imprecise. Even Brugger has expressed alarm at statements from Pope Francis that appear to contradict Catholic teaching on contraception and on marriage and divorce, grace, conscience, and Holy Communion. The pope has also often refused to clarify his more problematic statements even when such clarification has been formally requested by eminent theologians and members of the hierarchy. In general, then, the pope does not appear to be interested in making clear doctrinal statements one way or the other.

The proper response to this highly unusual situation is surely one of great caution. While it is true that Pope Francis has not clearly reaffirmed traditional teaching on capital punishment, it cannot be said that he has clearly rejected it either. Indeed, Fastiggi himself has said that “it’s not clear whether Pope Francis has himself taken [the] position… that the death penalty is intrinsically immoral.” But if the traditional teaching is ancient, unambiguous, and explicitly intended to clarify doctrine, whereas Pope Francis’s remarks are very recent, unclear, and not necessarily intended to revise doctrine, then the latter can hardly justify calling the former into question.

Finally, even if Pope Francis had clearly and unambiguously taught that capital punishment is intrinsically evil, that would not justify rejecting past papal teaching. For as we have seen, that past teaching is irreformable. If Pope Francis or any other pope were to contradict it, he would simply be guilty of a doctrinal error. While papal error of this sort is extremely rare – there are only a handful of possible cases in two millennia of Church history – the Church recognizes that it can happen when a pope is not speaking ex cathedra. And there could be no surer sign that it has happened than if a pope were to teach something that contradicted the unanimous teaching of scripture, the Fathers and Doctors of the Church, and all previous popes.

Archbishop Charles Chaput, despite his firm opposition to capital punishment, has stated:

The death penalty is not intrinsically evil. Both Scripture and long Christian tradition acknowledge the legitimacy of capital punishment under certain circumstances. The Church cannot repudiate that without repudiating her own identity. (Emphasis added)

The reason the Church cannot repudiate it without repudiating her own identity is that to repudiate this teaching would be to affirm that the ordinary magisterium has been leading the faithful into grave moral and doctrinal error for two millennia. That would entail that the ordinary magisterium does not, after all, enjoy divine assistance, so that the Church is not what she has always claimed to be.

Accordingly, defending Pope Francis by calling into question the clear and consistent teaching of two millennia is (to borrow a notorious expression from the Vietnam War era) like destroying a village in order to save it. It undermines the credibility of all popes, including Pope Francis himself. It’s that simple, and that serious.