Speaking to the St. Thomas More Society of Philadelphia last spring, Fr. Neuhaus said, "When it is not necessary for the bishops to speak on a particular subject, it is necessary that they not speak on that subject." As with everything Fr. Neuhaus says, there is a lot of truth in that.

I mention this because Fr. Frederico Lombardi, S.J., the director of the Vatican Press Office, has commented on the execution this past weekend of Saddam Hussein for crimes against humanity. An execution, Fr. Lombardi says, "is always tragic news" and a "reason for sadness, even if it is about a person who has been guilty of grave crimes." That’s true, of course, though somewhat banal: It’s likewise tragic news and a reason for sadness, though less so, that a man who held up a liquor store is serving three to five in the state penitentiary. Fr. Lombardi insists on going further, however. "To kill the guilty one," he insists, "is not the way to rebuild justice and to reconcile society. The risk also exists that, on the contrary, the spirit of vengeance will be fueled and new violence be sown."

This latter assertion is far from banal. In fact, it’s highly controversial. Without necessarily disagreeing with the assertion, I want to call attention to its character. The claim that executing Hussein will likely lead to more violence in Iraq than otherwise would be the case is, obviously, not a teaching of the Catholic Church on faith or morals. It is, rather, an empirical claim about contingent matters of fact, about what policies are likely to have what consequences in the real world. It’s the same kind of claim, from an epistemological point of view, as a statement from the Federal Open Market Committee that increasing the federal funds rate is not necessary to address inflation risks, or a statement from the New York City police commissioner that arresting turnstile jumpers will reduce gun violence on the subways.

Catholics are required, in defined circumstances, to believe with theological faith certain assertions by the Roman pontiff and the College of Bishops, and they are required to give a religious submission of will and intellect to other such assertions, but in each case the propositions must concern faith or morals. (See the commentary of the Congregation for the Doctrine of the Faith on the Professio Fidei available here ). This is not to say that Catholics may ignore the Roman pontiff or the bishops on other issues. Quite the contrary: Catholics must consider what they say with great respect, but they must do so in the process of forming their own judgments on such matters.

Respect as I may what the Roman pontiff and the bishops say when speaking on matters other than faith and morals, I wish they would move in the direction of the policy suggested by Fr. Neuhaus. The reason is that many Catholics, even highly educated ones, are so poorly catechized that they don’t distinguish between statements they are required to believe with theological faith, statements to which they ought give a religious submission of will and intellect, and other statements that they need only respect and consider in forming their own judgments.

For example, there is a clear distinction between the Church’s teaching on abortion and the Church’s teaching on the death penalty, but even many Catholic intellectuals seem confused about the difference. The Church teaches that some actions¯the traditional examples are apostasy, murder, and adultery¯are wrong per se, that is, always and everywhere wrong, regardless of the circumstances (see Veritatis Splendor , no. 80). Abortion, as a form of homicide, is such an action. When the Church teaches that abortion is wrong, therefore, it is making a moral claim independent of any empirical claim about circumstances, for no consideration of circumstances is needed in order to conclude that an action of procuring or performing an abortion is wrong (even though circumstances may make a particular instance more or less wrong). The teaching on the wrongness of abortion, therefore, is wholly a matter of morals, and, since the Church has definitively taught on this matter by its ordinary and universal magisterium, the teaching is de fide divina et catholica and thus something all Catholics must believe with theological faith (see Evangelium Vitae , no. 57).

The death penalty, however, is quite different. As Avery Cardinal Dulles explained in First Things back in 2001, the Church does not teach that the death penalty is wrong per se. On the contrary, the Church teaches that sometimes, depending on the circumstances, the death penalty is permissible, and sometimes, depending on the circumstances, the death penalty is not permissible. So far we’re in the realm of morals; hence, depending on whether this teaching is definitive or not, Catholics must accept it either in theological faith or with a religious submission of will and intellect. When the bishops go further, however, and make claims about whether actual circumstances in the world are such as to make some particular application of the death penalty right or wrong, we are in the realm of empirical judgments about circumstances, and these judgments are not matters of faith and morals. Consider this from the Catechism of the Catholic Church (no. 2267):

Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm¯without definitely taking away from him the possibility of redeeming himself¯the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically nonexistent."

The first two sentences concern morals, but the third sentence is an empirical claim about the state of the world and so is not about morals. The first two sentences are thus, at the very least, doctrina catholica , which Catholics must accept with a religious submission of will and intellect. The third sentence, however, is not; it need only be respected and considered in forming one’s conscience. Catholics need not ultimately agree with it. Compare Justice Antonin Scalia’s conclusion in First Things from 2002.

This is not to say that bishops should never speak on questions beyond faith and morals, including on particular questions, such as the execution of Hussein. When they do so, however, it would be better if they were clear on the nature of the statements they are making and the kind of deference faithful Catholics should give them. As things are, such statements tend to engender more confusion than clarity.

Worse, the current situation is ripe for abuse: Bishops, like everyone else, prefer it when people agree with them, and so some bishops are tempted to enunciate positions and invest them with the authority of their office, even when those positions go beyond matters of faith and morals and depend on particular, even idiosyncratic, views about empirical circumstances. There is a danger, in other words, of bishops leveraging their legitimate authority in faith and morals into the political arena by implicitly passing off empirical judgments as if they were teachings on faith and morals commanding the assent of faithful Catholics. We should resist this. One can oppose the naked public square without thinking that it ought to be dressed up in just any old garb whatsoever, no matter how tatterdemalion.

Robert T. Miller is an assistant professor at the Villanova University School of Law.

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