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Capital Punishment and the Infallibility of the Church

In a two-part essay at Public Discourse (here and here), E. Christian Brugger has responded to Edward Feser and Joseph M. Bassette’s new book on capital punishment (By Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment). Feser and Bessette argue that the Church’s traditional teaching on the moral permissibility of the death penalty is irreformable and that it is therefore illegitimate – indeed, “close to heresy” – for any Catholic to assert that the death penalty is intrinsically wrong (they allow that Catholics may legitimately disagree about the prudence of employing the death penalty in any particular circumstances). Brugger claims that they are wrong; and that capital punishment is intrinsically wrong.

But he is wrong.

In his response to Feser and Bassette, Brugger attempts to show that the Church has never infallibly taught that capital punishment is morally permissible in principle. But in order to do so he relies on an excessively narrow conception of the ordinary magisterium.

Brugger relies on the text of Lumen gentium 25 in setting out what he takes to be the four necessary conditions for the infallible exercise of the ordinary and universal magisterium and argues that the traditional teaching of the Church regarding the morality of the death penalty fails to meet any of them. (Really? The bishops have never maintained the bond of communion among themselves and with the successor of Peter?)

The text he cites is this (with his enumeration):

“Although the individual bishops do not enjoy the prerogative of infallibility, they nevertheless proclaim Christ’s doctrine infallibly whenever, even though dispersed through the world, but still (1) maintaining the bond of communion among themselves and with the successor of Peter, and (2) authentically teaching matters of faith and morals, (3) they are in agreement on one position (4) as definitively to be held.”

But, Brugger claims, not many bishops have ever authentically taught the legitimacy of the death penalty, and only very few taught this as a doctrine that must be definitively held. Regardless of the truth of these claims, however, Brugger’s fundamental mistake is to assume that the infallible teaching of the ordinary and universal magisterium can only be found in the explicit statements of the bishops.

Admittedly, one could easily come to such a conclusion from reading this text in isolation, but the fact is that the ordinary and universal magisterium encompasses much more than this.

The Origins of the Term ‘Ordinary Magisterium’

The term ‘ordinary magisterium’ originated with Joseph Kleutgen, a neo-scholastic Jesuit theologian of the middle of the nineteenth century. He was concerned to combat the tendency of many modern theologians (especially in Germany) to assume that if a doctrine had not been defined by a judgment of the Church, then it was a matter of free opinion. Against this idea, he wanted to reassert the fundamental authority of Scripture and Tradition against an excessive reliance only on the explicit judgments of the Church. But he also wanted to uphold the Catholic principle of ecclesiastical mediation against the Protestant principle of Private Interpretation. His solution was to describe the living tradition itself as a mode of exercise of the magisterium. The term ‘ordinary magisterium’ is not meant to describe a certain kind of magisterial document. It is meant to describe the living tradition itself, and especially meant to highlight the authoritative nature of the Church’s transmission of divine revelation apart from and in addition to the explicit magisterial statements of the hierarchy.

In proof of the authority of the living tradition-ordinary magisterium, Kleutgen appeals to the practice of the ancient fathers of the Church, who did not hesitate to accuse Marcion, Arius, Nestorius, and many others of heresy even before their doctrines had been condemned by a judgment of the Church; in fact, it was precisely this vigorous opposition that eventually led to their formal condemnation. Yet how could this be if the faith of the Church were unable to be known with certitude apart from her formal judgments? The fathers of the Church who opposed Arius, for example, seem to have acted on the assumption that the co-equal divinity of Father and Son was sufficiently taught by the Church such that its denial constituted heresy even prior to its solemn definition at the First Council of Nicaea. In Kleutgen’s terminology, it was already infallibly proposed as a dogma of faith by the ordinary magisterium prior to its solemn definition by the extraordinary magisterium. And the fathers of the Church were not gathering citations from the authentic teaching documents of every bishop dispersed throughout the world. They were citing the clear teaching of Scripture and the Tradition received from the apostles.

Identifying the Teaching of the Ordinary Magisterium

The teaching of the ordinary magisterium may be seen in many places, but most clearly in Scripture itself. Kleutgen writes:

“The Church, initially through her constant and ordinary magisterium, subsequently also through explicit conciliar definitions, has declared that the Holy Scriptures, as we have them now, are the genuine and unadulterated word of God. Thus she has also proposed to us for belief their entire contents as the revelation of God. Therefore, as soon as we cannot doubt that something is contained in the Scriptures, so we are also certain that this is taught by the Church as revealed truth.” (Die Theologie der Vorzeit, 1st ed., 49)

And even for those passages in Scripture which are not sufficiently clear in themselves, says Kleutgen, the Council of Trent refers the faithful not to the explicit judgments of the Church but to “that meaning which she has always held and holds” and to “the unanimous interpretation of the fathers,” or in other words, to the living tradition.

So when Kleutgen says that Catholics are bound not only by the extraordinary magisterium but also by the infallible teaching of the ordinary magisterium, he means that Catholics are bound not only by the formal judgments of the Church, but also by the word of God itself handed down in the Church through her living tradition. In addition to the plain sense of Scripture, therefore, one ought to look for the teaching of the ordinary magisterium in the teaching of the fathers, who are the privileged witnesses of the Church’s tradition, and then also in the writings of other prominent doctors and theologians, the monuments of antiquity (e.g. graves with their inscriptions, churches with their altars and paintings), the customs, laws, and liturgies of the Church, and the decrees of individual bishops and local councils (Ibid., 51). In other words, the teaching of the ordinary magisterium is to be sought in all the traditional loci theologici; and the statements of individual bishops comes only at the end of the list.

Finally, because the investigation of all the sources of theology may often be long and arduous, Kleutgen also proposes “a short and easy path for recognizing, even in difficult cases, whether something belongs to the general faith of the Church” (Ibid., 57). This is the unanimous consensus of the most prestigious theologians. His basic claim is that, when all the most prestigious theologians agree that something is a dogma of faith, even though not determined by a solemn judgment of the Church, they are witnesses of the fact that it belongs to the general faith of the Church. And although the theologians themselves are certainly not infallible, “their testimony, when it is so explicit and unanimous, must be held as unobjectionable” (Ibid., 58).

As examples of dogmas never defined by explicit judgment but taught infallibly by the ordinary magisterium, Kleutgen includes: that Christians have the moral duty to love their neighbors; that pride is a sin and humility a virtue; that God is infinite according to His nature, that He is all good and all knowing, that He foresees the free actions of men; that He freely created and rules the world; that creatures not only receive their existence from Him, but are also held in being by Him; that His providence extends over everything; that the fallen angels are all damned; and that the souls in purgatory are unable to grow in virtue and merit.

Are we unable to present all eight beatitudes with confidence as doctrines of our Lord or must we choose only those few which are partially reflected in judgments of the Church? Can we not present the flight of our Lord to Egypt as part of the faith with as much confidence as His birth and crucifixion? May we not believe in the sending of the Holy Spirit on Pentecost and our Lord’s prior promise of this sending just as we believe in the divinity of the Holy Spirit as divinely revealed truths? According to Kleutgen, we can and indeed we must.

By Brugger’s standards, all of these doctrines would apparently be up for grabs.

Vatican I on the Ordinary Magisterium

Kleutgen’s new term ‘ordinary magisterium’ was soon picked up and introduced into the official vocabulary of the Church by Pope Pius IX in the apostolic letter Tuas libenter (1863) and then by Vatican I in the constitution on the Catholic faith Dei Filius (1870). The influence of Kleutgen on these documents is clear not only from their contents, but also from the historical records in the Vatican Archives. Kleutgen was even directly involved in the drafting of Dei Filiusas a peritus at the council. His influence is most clearly felt in ch. 3, which states:

“Wherefore, by divine and Catholic faith all those things are to be believed which are contained in the word of God as found in Scripture and tradition, and which are proposed by the Church as matters to be believed as divinely revealed, whether by her solemn judgment or in her ordinary and universal magisterium.”

When this text came up for discussion at the First Vatican Council it was met with some opposition. Several bishops objected that it should be moved to the schema on the Church instead of that on the Catholic faith. One bishop argued that it was simply false because doctrines taught by the ordinary magisterium are not to be believed with Catholic faith. Many bishops objected (prophetically, as it turns out) that the term ‘ordinary magisterium’ is obscure and ambiguous. The only bishop to voice support for the text initially was one who thought the term ‘ordinary magisterium’ was meant to be understood in reference to the papal magisterium (a misunderstanding which was then urged by others as further proof of the obscurity and ambiguity of the term).

Bishop Martin of Paderborn intervened on behalf of the deputation responsible for drafting the text in order to respond to these objections. He defended the use of the novel term ‘ordinary magisterium’ by pointing out that it had already been used by Pope Pius IX in Tuas libenter.

After this, several more bishops commented (more approvingly) on the text and expressed their understanding of the ordinary magisterium in various ways as consisting in the daily preaching, liturgical prayers, method of conducting and defining business in the episcopal courts, and in the Roman congregations; as being exercised under the authority of the hierarchy, through pastors and teachers, through bishops and parish priests, through the words of preachers, through orthodox theologians, through approved books, through liturgical books and catechisms, etc.

Granted, none of this detail enters into the final text of Dei Filius, nor is the meaning of the term ‘ordinary magisterium’ explained in any more detail in Tuas libenter, and it is not even used in the text of Lumen gentium, which is Brugger’s only source. The fact is that the Church has offered very little explicit clarification of the term ‘ordinary magisterium’ even while insisting on its authority. But it is sufficiently clear that the way in which it was used and intended to be understood by Pius IX and the First Vatican Council (which are cited in a footnote on the relevant passage of Lumen gentium together with a commentary by Kleutgen himself) is quite a far cry from Brugger’s more limited notion of the ordinary magisterium consisting exclusively in the explicit magisterial statements of the bishops.

What Feser and Bassette have done in their recent work on capital punishment is to build an impressive case for the irreformability of the Church’s traditional teaching by amassing evidence of the teaching of the ordinary magisterium in all its dimensions. To argue that not much of this evidence comes from explicit magisterial statements of bishops is beside the point.


Dr. John P. Joy is the President of the St. Albert the Great Center for Scholastic Studies. He is the author of the forthcoming “On the Ordinary and Extraordinary Magisterium from Joseph Kleutgen to the Second Vatican Council” (Dec. 31, 2017). This article originally appeared at the website of the Dialogos Institute, and is reprinted here with the author’s permission. 

7 thoughts on “Capital Punishment and the Infallibility of the Church”

  1. These weevils are detestable-in an age of instantaneous access to history and its documents they insist on attempting to convolute matters to their personal edicts.

  2. I welcome this topic very much. The narrowing of what constitutes binding Catholic tradition and belief to explicit dogmatic statements (usually from V2 and post-V2 documents) must be more openly opposed. Despite being a preposterous idea that sweeps under the rug every other fount of the faith, most of which is how the faith has historically been handed on, this approach appears to enjoy wide acceptance as The First Principle of all neo-Modernist theologizing, whether liberal or “conservative”.

  3. We are not bound by the magisterium of the moment. The dead are no less authoritative than the living. In fact, when the living contradict the authentic magisterium of the dead, they violate the basic principle of rational thought, that is the principle of non-contradiction. This is the only way to judge when we are being lead into wrong, or indeed, heretical and novel doctrines. Recall the warnings of St. Paul (“if even an angel”).

  4. Brugger’s approach is reminiscent of the tactics of the anti-gun lobby in the US, dishonest from the get-go. He twists language to suit his goal and then proceeds boldly to reach a predetermined (and wrong) conclusion. His greatest ally? Ignorance. In fact, just about all liberal campaigns, whether against guns, for abortion, for sodomy, etc., flourish only in an a breathtakingly disingenuous atmosphere.

  5. Well if the scriptures are clear especially when Jesus tells that we must do something like eating His Flesh and drinking His Blood, than we must do both at Mass.


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