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  • The New Natural Lawyers, Contraception, Capital Punishment, and the Infallibility of the Ordinary Magisterium
  • Christian D. Washburn (bio)

In the years following Humanae Vitae, the encyclical enjoyed little support from Catholic theologians; but a few moral theologians, led by Germain Grisez, heroically came to its defense.1 These theologians attempted to use their New Natural Law theory (NNLT) in the service of the magisterium, but their arguments proved inadequate to stem the tide of dissent. In 1978, John C. Ford and Germain Grisez took a new approach, publishing an article arguing that the Church's teaching on the immorality of artificial contraception was taught infallibly by the ordinary universal magisterium. Their article was so successful that Russell Shaw's 1978 summary of their argument is still on the United States Conference of Catholic Bishops website.2 The NNLT, however, has led a number of its proponents to hold views on other theological issues that are clearly contrary to the teaching of Sacred Scripture and the doctrine of the Catholic Church, most notably on the issue of capital punishment.3 The NNL theorists do not merely argue that capital punishment should prudentially be set aside, given the numerous problems associated with its contemporary use, but that capital punishment should be condemned as intrinsically evil. Ironically, many of the arguments that [End Page 19] these theologians now advance in defense of their teaching on capital punishment are essentially the same arguments made in support of contraception by those engaged in dissent in the 1970s and '80s. This article will argue that the received Catholic teaching on capital punishment has been proposed infallibly by the ordinary universal magisterium and that the case that Ford and Grisez made against contraception can be made even more strongly for capital punishment. To this end, this article will first explain the New Natural Law theorists' view on the magisterial consensus on moral issues and then explain the teaching of Lumen Gentium 25 on the ordinary universal magisterium. Following the example of Ford and Grisez, the article will then examine the various sources for knowing the acts of the ordinary magisterium such as the papal magisterium, the Fathers of the Church, canon law, and the consensus of theologians to show that the criteria set forth in Lumen Gentium have indeed been met with respect to capital punishment. Finally, this article will examine some of the theological problems that result from the NNL theorists' position on capital punishment.

Ordinary Universal Magisterium

This article will assume Ford and Grisez's account of the ordinary universal magisterium, and will briefly summarize their explanation of the Second Vatican Council's explanation.4 In Lumen Gentium 25, Vatican II articulated the conditions under which the ordinary universal magisterium can teach in a definitive way: "Although the bishops individually do not enjoy the prerogative of infallibility, they nevertheless proclaim the teaching of Christ infallibly, even when they are dispersed throughout the world, provided that they remain in communion with each other and with the successor of Peter and that in authoritatively teaching on a matter of faith and morals they agree in one judgment as that to be held definitively."5

Theologians see in this text four conditions to be met in determining whether an infallible act of the ordinary universal magisterium [End Page 20] exists. The first condition is that although dispersed throughout the world, the bishops are in hierarchical communion with one another and with the pope.6 The second condition is that the bishops teach authentically on a matter of faith or morals. This means that each bishop must intend to speak with the authority of his office and not merely as a private theologian or as a believer. The phrase "faith and morals" was customary by the sixteenth century but admitted a wide range of meanings.7 In contemporary theology, the term "faith" refers to those matters of belief that pertain to the deposit of faith. The term mores signifies propositions about those acts that are to be done or avoided. The third condition is that the bishops agree in one judgment about a doctrine.

Lastly, bishops must propose the teaching as something "to be held definitively by all...


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