Safe, legal & rare?

Capital Punishment and Roman Catholic Moral Tradition

E. Christian Brugger

University of Notre Dame Press, $50, 281 pp.

After giving this book a quick look, I gathered its subject would be as much about Catholic authority and doctrinal change as about capital punishment. I also thought it would be a progressive book that would argue significant, even dramatic, change is taking place in official Catholic teaching and that more radical changes can be expected in the future. I was right about the book's focus on doctrinal development, but I was far off the mark otherwise.

E. Christian Brugger demonstrates how the Catholic position on capital punishment has shifted not only from yes to virtually never, but also from the category of just retribution to the category of a society's legitimate self-defense. The criteria for judgment also changed, from an emphasis on legitimate public authority to the inviolable dignity of the human person. Brugger sifts through the scriptural, patristic, medieval, and modern evidence, laying out themes and variations, commonalities and tensions, in the teachings of theologians and church officials.

Prior to Constantine, Brugger notes, the state's right to execute was recognized, but Christians themselves were not allowed to participate. After Constantine, the line between participants and nonparticipants gradually shifted to that between lay and clergy. Aquinas defended the state's right to execute with the analogy of the gangrenous limb that must be cut off for the sake of the entire body. Modern Catholic commentators mostly followed Aquinas, but often were caught in the tension between church and Enlightenment thinkers, some of whom, such as Voltaire, Hume, and Fichte, fought to severely limit or to abolish capital punishment.

The historical sections of Capital Punishment establish that none of the various versions of an overall consistent support for capital punishment has been taught infallibly. Yet it is here that Brugger's approach narrows. He considers at length whether bishops, spread throughout the world, have taught in a consistent and unified manner that the legitimacy of capital punishment is to be held definitively. He draws not only from Vatican II's Lumen gentium, but also and especially from a 1978 article in Theological Studies by John C. Ford and Germain Grisez, "Contraception and the Infallibility of the Ordinary Magisterium," in which they claim that the immorality of artificial methods of contraception has indeed been taught infallibly.

When I read that article as a first-year graduate student, I found it to be sad but probably true. The argument that Catholic bishops worldwide have taught definitively and infallibly on this matter had me reluctantly convinced, and I would not allow my intuition to over-rule Ford and Grisez's logic. It was not until I read Francis Sullivan's 1983 Magisterium, in which he takes apart their argument point by point, that I found breathing room around the issue. Sullivan acknowledged many of the specific claims made by Ford and Grisez, but brilliantly demonstrated how the arguments, whether taken individually or as a whole, do not actually determine that the prohibition on contraception has been taught infallibly.

I felt relieved on two counts. First, here was a serious alternative to Ford and Grisez's position. Second, it was an approach to understanding Vatican II's statements on infallibility more in harmony with the collegial spirit of the texts. The council's careful balancing of papal and episcopal authority did not seem intended to expand the church's infallible teaching to areas like contraception. Brugger, though, says nothing to suggest that Ford and Grisez may have gotten it wrong on contraception. In fact, Capital Punishment echoes their basic approach.

Brugger's focus on infallibility carries over to another subject as well. He uses the all-male priesthood as his example of a definitive Catholic teaching that is founded on true propositions even though historically it may have been justified with false propositions about the inferiority of women. In other words, he plays the infallibility card in a way that limits the discussion of potential development in areas of church teaching. Theologians should always take into proper consideration the level of authority with which any teaching is put forth; however, employing the idea of infallibility as a kind of clearinghouse that determines which teachings may be fair game for change is methodologically suspect.

Brugger's understanding of the dynamics of church teaching shows depth and sophistication. Although he tends to overemphasize infallibility, the fact that he takes magisterial teaching so seriously and places it so centrally is admirable. Still, he relies exclusively on the magisterial expressions found in the new catechism and in papal encyclicals.

A larger Catholic theological discussion exists. Brugger acknowledges in a footnote Francis Sullivan's position that there can be no infallible teaching regarding concrete moral norms, but he prefers to go with the weight of the tradition that suggests otherwise. Brugger displays little engagement with views that might challenge his own, such as the proportionalism of Richard McCormick, the dynamics of doctrinal development as studied by J. Robert Dionne, the categories of "reversal" and "the novel" used by John Thiel in regard to Catholic tradition, and the concept of "invention" used by Terrence Tilley. Brugger is right to remind us that as the emphasis of Catholic teaching shifts, the tradition as a whole needs to be protected with the zeal of a defense attorney and the painstaking precision of a philosopher. But, as McCormick, Tilley, and others also remind us, moral truth and doctrinal development are messy in ways that transcend a precise philosophical grasp.