According to Edward Feser, I seem “to think that the moral demands of the Gospel apply in exactly the same way to both the private sphere and the public sphere.” And this, he goes on to say, “is not only not the Catholic position, it is not even the Eastern Orthodox position. It is merely David Bentley Hart’s personal theological position, and he simply asserts it without argument.” Ah. Except that I don’t, and never have (though neither would I necessarily reject the proposition, since it seems a claim more dangerous to deny than to affirm; I would need to know precisely what “in exactly the same way” means in Feser’s mind.) I can see the cause of the confusion, however.
The issue is capital punishment, and Feser’s angry expostulation comes near the end of his rancorous reply to two extremely bad reviews—one by me, one by Paul Griffiths—of the “Catholic Defense of Capital Punishment” that he and Joseph Bessette recently published under the title By Man Shall His Blood Be Shed. Now, in fact, nowhere in the course of my treatment of the book do I enunciate any general principle regarding the relation between public and private morality for Christians; I do, however, point out that the attempt made by Feser and Bessette to reconcile their enthusiasm for the death penalty with Christ’s repeated prohibitions against retributive justice (the Sermon on the Mount, the woman taken in adultery, “seventy times seven,” “you have heard it said, an eye for an eye, but I tell you . . . ,” “judge not, lest . . . ”—well, you no doubt know the relevant passages) by invoking such a distinction is a ridiculous anachronism. And indeed it is, as any good scholar of the New Testament or of late antiquity could tell him. Christ’s moral teachings often concerned the interpretation and application of the Law—the preservation of its spirit but radical qualification of its letter—and, in the context of first century Judaism, a partition between private and public observation of the Law simply did not exist. And, really, one does not even need to be a scholar of ancient Judaism to know this. Any attentive reader of the Gospels will see that Christ explicitly applies his teachings to such matters as capital offenses (like adultery), lawsuits, theft of personal property, forced conscription of labor, and so forth.
In a larger sense, though, Feser’s failure to follow what I had actually said is only to be expected. After all, his book consists to a surprising degree in extremely careless readings, especially—though not exclusively—of the Bible and the Church Fathers. It is, to put the matter simply, an exorbitantly bad book, one that contains not a single compelling or solvent argument. Moreover, while its appeals to natural law are merely unpersuasive, its uses of scripture, theology, and the Church Fathers are almost fantastic in their awkwardness and crudity. It is obvious that neither author has even the most general grasp of any of these fields; and yet the conclusions they try to bring back from their maladroit ventures into the unknown are staggeringly ambitious. It is also a book whose moral coarseness borders at times on the surreal—as when Feser and Bessette casually write off instances of false conviction in capital cases as lamentable but acceptable statistical aberrations, like those occasional fatal reactions to vaccinations that have to be accepted as part of the price of public health. Hence the poor, or at least lukewarm, reviews the book has tended to receive.
Feser, however, feels ill-used. And, in replying to his critics, he strives to give a meltingly moderate impression of his book’s rhetoric, and to make it sound as temperate and modest as possible; he claims that he and Bessette merely advocate that Christian society allow the death penalty as a legal option in cases of the most heinous evils, and nothing more. In actuality, however, they insist that Catholic orthodoxy positively requires support for the death penalty in principle, and argue vigorously that the death penalty’s application is a positive moral and social good to whose liceity Christian consciences are bound to assent by orthodox tradition. Admittedly, there are phrases in the book that, ripped from the context of the whole, sound more reasonable and diffident than the book in its entirety. But one need merely consult the text to see how disingenuous Feser’s protests are.
Then again, in Feser’s defense, I suppose it is possible that he and I (and Griffiths) simply have very different ears for tone. For instance, he faults me for objecting to the book’s use (twice) of the career of Giovanni Battista Bugatti—the official executioner of the Papal States who from 1796 to 1865 executed 516 convicted criminals, by decapitating them with an axe or a guillotine, or by slitting their throats, or by crushing their heads with a mallet, or by having them drawn and quartered—as some sort of proof of the Catholic Church’s commitment to the essential justice of the death penalty. And he faults me in particular for professing astonishment at his and Bessette’s failure to express sufficient dismay at the number or savagery of the executions. The book does not offer Bugatti as “proof” of any doctrinal point, he insists (not that I said nothing about doctrine). And, as for dismay, he and Bessette did after all write: “we certainly would not defend the harsher methods of execution employed in the nineteenth century.” And, who knows? Perhaps I should have been more deeply moved by those stirring words; and maybe my inability to discern in them a sufficiently decorous note of moral indignation is the result of my own excessive emotional fastidiousness. Even so, let me rephrase the matter, for clarity’s sake: It astonishes me that, from the number and savagery of the executions Bugatti carried out, Feser and Bessette should have concluded anything other than that Bugatti’s career provides evidence of a deeply degenerate period of the papacy. I have a (perhaps superstitious) trust in the logical and legal principle that no good or sound principle can be extracted from “fruit of the poison tree”; and Bugatti’s career was pure poison, from the point of view of either Christian doctrine or natural law. It might have occurred to Feser and Bessette that, quite apart from the cruelty of the methods used by Bugatti, and quite apart also from the laxity of the evidentiary standards adopted by the Papal States’ legal apparatus, there might be issues of natural justice here so grave as to discredit the moral authority of the Papal States in that period entirely. After all, we have records of almost all these executions. Many were for murder, and perhaps in most of those cases the convictions were just. But many were for robbery or forgery or fraud. One person was put to death for lightly injuring a French officer in a fight. Another was killed for breaking shop windows. So really, on the whole, Feser and Bessette would have been better off not mentioning the matter at all.
Feser also arraigns me for dishonesty. I, however, plead mere unclarity. I did indeed write that Feser and Bessette “take Innocent III’s decision to permit the execution of unregenerate Waldensians as proof that the legitimacy of capital punishment is ‘a matter of Catholic orthodoxy’ (emphasis theirs).” Feser, however, is quick to point out that what he and Bessette actually wrote was this:
In 1210, Pope Innocent III required adherents of the Waldensian heresy, as a condition for their reconciliation with the Church, to affirm a number of doctrinal points which included the following: “We declare that the secular power can without mortal sin impose a judgment of blood provided the punishment is carried out not in hatred but with good judgment, not inconsiderately but after mature deliberation.” The significance of this passage is difficult to overstate. The context—again, a set of demands made to a heretical group as a condition for reconciliation—makes it clear that the pope held affirmation of the legitimacy in principle of capital punishment to be a matter of Catholic orthodoxy (pp. 123-24).
So, Feser triumphantly notes:
What we actually and very clearly say is that the doctrinal statement that Pope Innocent required the Waldensians to agree to is what makes capital punishment a matter of orthodoxy. We don’t say anything about the "execution of unregenerate Waldensians," either here or anywhere else in the book.
I see. Fair enough, I suppose. Even then, Feser is incorrect in saying that what the Pope demanded from the Waldensians was assent to a “doctrinal” point (at least, if the Enchiridion Symbolorum is to be trusted); so his argument is false prima facie. But, as regards the point I was trying to make, the Waldensians in question were in fact under threat of death if they remained “unregenerate” and refused to accept the terms of reconciliation; and so, indeed, it is the Pope’s permission for the secular arm to kill those Waldensians that provides the occasion for the claim Feser and Bessette are advancing. If, however, I failed to make myself clear, I am contrite, and shall strive to do so now: I was again making an argument about “fruit of the poison tree,” and doing so on the assumption (which I hope is correct) that Feser and Bessette would agree that the execution of heretics was an inherently unchristian practice.
What I do not understand, however, is Feser’s complaint that I then misrepresented his book when I wrote this: “the claim Feser and Bessette advance is not simply that Catholics may approve of capital punishment, but that they must, and that it actually borders on heresy not to do so.” All I can say is, read the book. Or rather, to save time, vide supra (note especially the sentence directly following the block quote overhead). “Orthodoxy,” “doctrine” . . . these are fairly unequivocal terms. Yet neither is actually appropriate. There is in fact not a single dogma of the Catholic Church that requires the liceity of the death penalty. The Pope could tomorrow declare all capital punishment sinful and incompatible with Catholic teaching ex cathedra, and he would not be contradicting a single recognized doctrine. If you doubt this, tolle, lege any copy of Denzinger. And the current catechism of the Church bears this out. (Feser complains that Griffiths and I do not deal with the fifty pages of arguments he and Bessette devote to their procrustean attempt to blunt the catechism’s piercingly unambiguous statements on the matter. But that was a mercy on our parts. To refute those arguments it is enough to recite them.)
It may be that the greatest problem with Feser and Bessette’s book is that their central argument is not so much false as irrelevant. They expend a great deal of energy on trying to prove that the death penalty is a just requital for certain crimes, and that both scripture and Catholic tradition acknowledge as much. But this is not the issue. Part of the confusion, I imagine, is that they have taken their disagreements with certain proponents of the “new natural law theory” (who do indeed argue that capital punishment is inherently unjust) as applying to the more specific question of whether Christians are allowed to impose or support capital punishment. But the question of justice has never been a matter of much contention. Most ancient authors, at least, Christian no less than pagan, were happy to grant the inherent justice of every form of the lex talionis, and the Christians were willing to go still further and assert that in a sense all of us stand under a just sentence of death. But a Christian is held to a higher standard than what merely conforms with justice. And it is Feser and Bessette’s persistent failure to grasp quite what the issue is that partly accounts for, and even somewhat excuses, their misreadings of the Church Fathers. But only partly. What remains inexcusable is their habit of adducing passages wrenched out of context, and then of violently misrepresenting their authors. I do not really care whether Feser and Bessette are so benighted as to think Christians can practice capital punishment; but how dare they attribute such a view to Origen, who explicitly believed that Christians are prohibited by Christ’s law from ever imposing the death penalty. In his reply to his critics, just as he and Bessette did in their book, Feser quotes a passage from the Contra Celsum in which Origen acknowledges that (as Paul said) the (pagan) government of his time has the power to torture and kill those who resist it, and that it wields this power by God’s permission, and attempts to show thereby that Origen is willy-nilly on the side of capital punishment. This is atrocious.
Unfortunately, however, this is the approach Feser and Bessette consistently take to the patristic evidence in their book. One of the more glaring examples of their cavalier attitude toward the documents they raid for proof-texts is a single phrase they pluck from a sermon of John Chrysostom’s, praising the emperor Theodosius for refraining from a “justifiable slaughter” of Antiochene rebels: this they offer as an unambiguous statement of the death penalty’s propriety. This is simply perverse. Even in English, of course, “justifiable” would be a rather vague way of expressing John’s view of things; but, of course, John did not write in English. What in fact he commends the emperor for not undertaking is a “δίκαιος φόνος [dikaios phonos],” which might better be rendered as “lawful” or even “customary slaughter” (“dikaios” does not have anything like the simple moral connotation of our word “just”). But that is only a minor concern. As it happens, the sentence is taken from what is in fact one of the most earnest and impassioned attacks on capital punishment in the whole corpus of post-Constantinian patristic literature. I do not know whether it is ignorance or cynicism that makes Feser and Bessette appear so indifferent to the true convictions of the authors they cite, but I hope it is the former.
Feser also cites a passage (very inaccurately translated, incidentally) from a famous pair of letters by Ambrose, written well into the Christian period of the empire, addressing the issue of whether magistrates ought to be excluded from communion if they have handed down guilty verdicts for crimes that statutorily carry the death penalty. Replying to the widespread assumption that they should be excluded (which is quite significant in itself), Ambrose concludes that those magistrates who willingly exclude themselves from communion on such grounds are to be praised (which is even more significant), but then concludes that bishops are still not authorized to excommunicate magistrates for discharging their offices in good conscience. In this, it is worth noting, Ambrose was breaking with the practices of the pre-Constantinian Church—and even then only reluctantly. In those same letters he goes on to affirm at great length, and quite passionately, that Christians ought not to condemn even the guilty the death, but should instead forgive them and then seek their salvation.
So it goes. Even when Feser cites patristic texts that seem more congenial to his views, he still invests them with meanings they do not naturally bear. Yes, Augustine’s 87th epistle affirms the right of civil authorities to use coercion and violence (probably including capital punishment). And in the City of God Augustine says that those lawfully deputed by a duly appointed authority to put a person to death are not guilty of murder. By that time, perhaps, this was becoming the accepted view; but it certainly had not been the view of the Church of the first few centuries. And, more to the point, it was also a very weak claim, and one entirely devoid of prescriptive content. As it happens, Augustine not only disliked capital punishment, but also believed that Christians, being called to a higher good than mere natural justice, should properly refrain from it (see Sermon 13, Letters 100, 133, 134, 153, etc.).
(Feser is right, I concede, that Pope Innocent I did once defend capital punishment, early in the fifth century. In the same document, however, he also defended torture, which I believe Feser would not do. And so we are back to that damned poison tree again.)
In any event, it really is not very difficult to follow the story here. The very earliest Christian documents that address the question of the death penalty treat it as a practice wholly forbidden for Christians. This is not open to debate; the evidence is clear and overwhelming. Even the one Church Father from the first three centuries who professes to find some moral value in capital punishment in some extreme cases, Clement of Alexandria, does so in a text written for pagan readers, and not as a prescription for Christian practice (among second century Alexandrian Christians it was generally held that the highest moral and spiritual truths can be grasped only by those advanced in the faith). Simply said, the communities founded by the apostles, for several generations, regarded the rejection of the death penalty as an essential truth of their faith; in consequence, they regarded it as improper for Christians to serve as magistrates or to act as executioners, or even for that matter to accuse others of capital offenses. After the conversion of Constantine, however, as Christianity became more and more intertwined with the ancient imperial order, ambiguities began to arise. Ambrose, for instance, was clearly disposed to regard the death penalty as contrary to Christian principles; he even believed that Christ on the cross had exhausted the wrath of the Law entirely. But his was a delicate situation, and he (unlike the Christians of previous centuries) had to negotiate the reality of a baptized pagan social order. Whether his solution was the correct one may be debated. But the point to take away from this is that, even when the later Church Fathers conceded that the civil authority could sometimes impose the death penalty without inviting the Church’s ultimate censure, they rarely if ever conceded that Christians ought to do so. What is certainly not the case is that there was a “patristic consensus” in favor of capital punishment. There was at most a tendency among the later Church Fathers to attempt to find some sort of reasonable balance between, on the one hand, the intrinsic incompatibility of capital punishment with Christian moral principles and, on the other, the reality of the progressive conflation between civil society as a whole and the community of the faith. I do not object to Feser and Bessette taking what comfort they may from that, such as it is. Ambiguity always provides an opportunity for those enterprising enough to exploit it. Feser and Bessette may see here a development of Christian self-understanding, just where I see the start of a slow drift away from the teachings of the apostolic communities. What to them may look like an emerging clarity may look to me like a deepening confusion. As one pleases. That said, I do object, and very strenuously, to their willingness to exaggerate and in many instances to dissemble the views of the authors they so confidently cite.
Anyway—one last excursus, since it leads naturally to my concluding observations. Feser and Bessette take considerable comfort from Romans 13:1-7 (the bit about obeying authorities, fearing the power of “the sword,” and so on). They have to do so, since the rest of the New Testament seems to reject all form of coercion, and these few feeble and vague verses are the only thing remotely resembling an approbation of lethal civil force. In my review of Feser and Bessette’s book, however, I raised several points about these verses, the least important of which is the classicist’s quibble that the original Greek of the passage gives almost no encouragement to the idea that Paul is talking there about capital punishment at all. To repeat: The word usually translated as “sword” in this passage is μάχαιρα [machaira], which was the name for a large dagger or short sword generally carried at the waist in a μάχαιροδέτης [machairodetēs], a leather belt. Now, Paul may have used this word for any sword whatsoever, but the truth is that the sentence in which it appears—οὐ γὰρ εἰκῇ τὴν μάχαιραν φορεῖ [ou gar eikē tēn machairan phorei], “For it does not carry the sword in vain”—resembles no customary formulation for the power of capital punishment. For that, one would generally expect a reference not to a machaira, but to “τὸ ξίφος [to xiphos]”—“the sword”—wielded by an executioner. And the problem is not just the noun, but the verb as well. “Phorei” really does have the connotation of “carry around,” not the grander connotation of “bear” in the sense of owning a special privilege, or of wielding a special power. The verb that would make sense if Paul were in fact speaking of the power of capital punishment would be a straightforward ἔχει [echei]: “has,” “holds,” “controls”. (I offered some lines from Philostratus to illustrate the point.) Paul’s Greek may have been lacking in elegance, but he certainly would have been able to make his meaning clear if he had had any special reference to the death penalty in mind. To a first-century reader, the phrase “τὴν μάχαιραν φορεῖ [tēn machairan phorei]” would certainly have summoned up the image of a μάχαιροφόρος [machairophoros], a “carrier of a short-sword,” which is to say a soldier, military policeman, civil guard, or taxation enforcement officer. Dangerous men, admittedly (especially if one caused a public disturbance), but not executioners.
Feser grants that I may be right in my interpretation of the passage, but then cites a host of New Testament scholars (some of whom are indeed very fine scholars) who say otherwise, and so dismisses my observations as debatable. In point of fact, they are not. Feser may be under the impression that all New Testament scholarship is of equal weight. Most of it, though, merely repeats conventional readings, however fallacious. He may also not know that many New Testament scholars are not classicists, but instead got their Greek in seminary, and so do not have much ear for antique Greek idioms. And in the sentence in question, again, both noun and verb are wrong idiomatically. Moreover, scholarship progresses, and we have learned a great deal in recent years about what a machairophoros was from a host of Hellenistic papyri (see Amherst Papyri 2.38; Papyri Tebtunis 35.13 and 391.20; Bodleian Ostraca 3.64; Michigan Papyri 577.78; etc.). There is literally no compelling reason for reading Paul’s remarks as referring to capital punishment, and a host of very good reasons for not doing so. And, truth be told, given the overwhelming power of the New Testament’s language forbidding Christians to exact retributive justice and proclaiming the overthrow of the wrath of the Law in Christ, Feser and Bessette desperately need this passage to say what they want it to say, with absolute clarity; they at the very least need it to say what they want it to say with at least some substantial degree of probability. It does not.
But, again, this is the least important point to be made about these verses. The most important is that they concern only how Christians are to conduct themselves as subjects of a pagan empire. Paul never imagined that a Christian civil order might arise, or even that the world would be around long enough for Christianity to become socially respectable. This passage offers no prescription whatsoever for how Christians might conduct themselves in positions of power, or how they might legislate and enforce civil order. There is nothing in these verses—absolutely nothing—that addresses what is required of Christians in regard to the prosecution of justice in the public or private sphere. For that, one must repair instead to the explicit moral teachings of the New Testament; and these, once again, uniformly forbid Christians any recourse to retribution.
Which brings me to my final observations.
It is perhaps easier for me as an Orthodox Christian than it is for a Catholic to dismiss Feser’s arguments. In the East, the matter was never really debated, and no theological justifications for capital punishment ever really entered the tradition. On the whole, the Eastern Church more or less unanimously opposes the practice, and has a long tradition of theological and spiritual teachers who have abominated it. All the major Orthodox jurisdictions have condemned the practice in recent years. But for Feser, the matter is not merely one of tradition, but of logic; and that is where he ends his reply to Griffiths and me. He thinks, for instance, that I have ensnared myself in an impossible dialectical bind. And, to show this, he calls attention to certain lines from my review of his book:
Let us grant, for argument’s sake, that the death penalty is indeed a just and proportionate response to willful murder. So what? That has never been the issue for Christians, for the simple reason that the Gospel does not admit the authority of proportional justice, as either a private or a public good. The whole of the Sermon on the Mount, for instance, is a shocking subversion of the entire idea. Christ repeatedly and explicitly forbids the application of such punishment . . . Again and again, the New Testament demands of Christians that they exercise limitless forgiveness, no matter how grievous the wrong, even in legal and public settings. And it insists that, for the Christian, mercy always triumphs over judgment.
Aha. “So,” Feser triumphantly fulminates, “it’s not just a matter of not executing murderers. We also have to refrain from punishing murderers at all, and from punishing rapists, bank robbers, kidnappers, embezzlers, et al. too. The jails should be emptied, and every cheek turned to every sadist who would slash it with a switchblade, let alone slap it. Let justice never be done, though the heavens fall.” Here, Feser thinks, I have dropped my guard entirely, and he need only deliver the coup de grâce:
Now, either Hart would endorse such a policy or he would not. If he would, then he owes us an explanation of how such permissiveness is compatible with even the most rudimentary social order. If he would not, then he owes us an explanation of how he can rule out capital punishment, but not other punishments, consistent with the extreme principles to which he is committed. Until he resolves this dilemma, his objection is not a serious one, but just empty rhetoric.
Well . . . nonsense. Twaddle. Dare I say, Balderdash? Feser’s hysterics aside, I do not need to explain a damned thing. I am merely reporting a fact about the New Testament’s prohibition of retribution, one that even a cursory reading of the text will confirm; take the issue up with Our Lord. More important, though, there is no dilemma here to resolve. Forgiveness precludes the principle of retribution, but not every form of punishment or coercion. A mother may at once punish her child and also forgive him unreservedly. Not, however, if she kills him. Then the whole forgiveness thing is definitely off the table. Of course, as cheap rhetorical tricks go, the reductio ad absurdum is among the most redoubtable, and always looks devastating for a few seconds. My point, however, is obvious, and Feser understands it perfectly well: He is arguing for the liceity of a Christian principle of retributive justice, whereas the New Testament consistently forbids Christians to adopt such a principle. Hence the modern Catholic Church’s refusal to allow for any possible just application of capital punishment except in those vanishingly rare (or possibly nonexistent) cases when it is the only way to save the lives of others. No doubt the gospel’s prohibitions on retribution requires prudence where the law is concerned, which means discerning which sorts of punishments are essentially retributive and which instead allow for the reformation of the criminal. Since capital punishment leaves the criminal dead, it would seem to be the very definition of the former. A large fine, a period of confinement, a life sentence, even the force exerted against a criminal to prevent him from harming another person (even if that force should prove lethal)—all of these can be imposed without complicity in the logic of retribution, at least ideally. It is quite possible that there is such a thing as force that is purely non-retributive in intent, and such a thing as a punishment that is also an act of forgiveness, even of charity. The death penalty, however—or so both logic and the testimony of the earliest Christians tell us—cannot really fit either description.
That said, and perhaps somewhat shockingly, I am willing to grant that here Feser has at least raised an interesting point. The earliest Christians, as it happened, refrained not only from magistracy and from pursuing complaints regarding capital crimes; they apparently refrained from all prosecution. In many ways, the early Church was so uncompromising and radical in its rejections of the old order that it may very well have verged on a kind of anarchy. And indeed, in reading the New Testament, one finds very little encouragement for the idea that Christians as a whole have any responsibility for what Feser calls “rudimentary social order.” I confess too that my understanding of Christianity (at least, that of the earliest centuries) is far more otherworldly and socially irresponsible than Feser’s is. On the whole, he assumes that Christianity must be compatible with a well functioning society, and that therefore Christianity in some larger neutral sense “works” as a way of promoting the social good. But perhaps Christianity, as presented in the New Testament, does not “work” very well at all, or at least would not do so if it were consistently applied to life in this world. Of course, it has never really been tried, so it is hard to say with certainty. Still, it seems likely that a genuinely Christian social order—made up entirely of those committed to Christ, and governed entirely by the sort of “lawless law” described in the Sermon on the Mount or in Paul’s depiction of the new life in Christ—might be impossible in practice, and therefore unimaginable in theory. I really do not know. I do not pretend to have any clear sense of whether a Christian social order could ever flourish this side of the Kingdom. I know only that Christians must live as if it could.
I know also that the story of the Church’s view of capital punishment is a great deal simpler than Feser makes it seem. I do not believe that anyone can possibly truly absorb the moral and spiritual teachings of the New Testament and conclude anything other than that there can be no genuinely Christian support for the death penalty. And the history of the early Church bears luminous witness to this. In later centuries, admittedly, as Christendom progressively displaced the earlier, purer, and more perilous forms of Christian life, things did indeed become more confused. Loyalty to Christ and loyalty to the civil order were now no longer antithetical to one another, which meant that neither loyalty could remain uncompromised by the other. Hence, again, all the great spiritual achievements and all the tragic spiritual betrayals that constitute the history of Christian civilization. Now that that civilization has passed, though, with all the good and bad consequences that have followed from its decline, the movement of the ancient Churches on this issue back toward the example of the early apostolic communities seems to have become inexorable. I take this to be a great work of the Holy Spirit, for what that is worth. Feser sees it in an altogether different light, just as he sees Christianity as something very different from what I take it to be. All I can say, once again, is that, weighing all the evidence in the balance—scripture, the history of the early Church, the patristic evidence, the plain language of the gospel—his view seems impossible to support logically. And, frankly, the book he wrote with Bessette does immeasurably more to confirm that conclusion than to challenge it.