Tuesday, October 24, 2006

The Controversial "Torture" Issue and Catholic Development Concerning the Treatment of Heretics

This issue is currently producing ferocious controversy in the blogosphere (complete with all the sadly usual personal attacks on both sides). For the most part I have kept out of it, for several reasons, but I did want to make a few comments, because the dispute touches on areas which greatly interest me (particularly, development of doctrine and how religious tolerance is viewed). I did so elsewhere and now reproduce my observations here.

The best place to get most, if not all, of the relevant, important links to both sides of the discussion is Chris Blosser's superb three-part compendium at his blog, Against the Grain:

I cite Fr. Brian W. Harrison at length, in favor of my position. His words will be in blue.

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I'm no fan whatsoever of the Inquisition, the Crusades, or of coercion to believe anything, but I recognize that it is necessary to some degree (the smallest amount the better) in the present circumstances. We're in the real world. Certain clearly specified, morally acceptable forms of coercion in limited amounts for extremely important strategic and preventive purposes is no worse than warfare itself, which the Church has never condemned in toto.

I should add that even if the Inquisition-era sanctions are not infallible (I leave those sorts of technical questions to canon lawyers), there is still a big problem that such acts were sanctioned at all by the Church in any way, shape, or form.

That would mean the Church was on the side of (and an outright proponent of) an intrinsically immoral act. I don't believe (in faith) that this has ever happened (call me naive if you like, but there it is). If someone thinks that it has, I think it has implications at the very least, for their ecclesiology, even if infallibility is not involved.

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One of the more temperate, sensible voices in the ongoing debate is Scott Carson, from the blog An Examined Life. His words will be in green:

. . . we may note that if it is possible for Veritatis Splendor to be mistaken about the moral status of torture because of the possibility of an appeal to fallible prudential reasoning, then it is equally possible for earlier documents "requiring" the use of torture to be mistaken in their use of prudential judgments to argue for the moral licitness of torture in defense of the common good. This renders the premise regarding the appeal to the alleged historical facts regarding earlier uses of torture either false or hopelessly ambiguous, and this vitiates the soundness of the argument.

It is worth noting at this point that the premise claiming that earlier "popes and councils" actually "sanctioned" torture is in itself hopelessly vague, even independently of its use in this particular argument. We are not told who these popes were, or which councils, or the circumstances under which they are being said to have "sanctioned" torture, or even what the alleged sanctions were other than threats of excommunication for "heresy". It ought to go without saying that this kind of premise is utterly useless if for no other reason than its manifestly controversial nature.

. . . the judgment of Veritatis Splendor, that torture is per se immoral (or, "intrinsically evil". . .), is not a prudential judgment, but a judgment about matters of faith and morals, the very domain in which the Ordinary Magisterium is regarded by faithful Catholics as indefectible. The judgments of earlier "popes and councils", however, to the effect that the use of torture is the correct way to safeguard the common good, are clearly matters of prudential judgment, matters in which the Ordinary Magisterium is not regarded as indefectible.

. . . if we are to regard the Church's Ordinary Magisterium as indefectible, we must take Veritatis Splendor to reflect the infallible teaching on the moral status of torture, and we must regard the actions of earlier "popes and councils" who threatened folks with excommunication for not using torture as misguided attempts to safeguard the common good.

("Who Speaks For the Church?", 10-21-06)

Hi Scott,

I believe I bypassed this objection in a brief comment on this issue that I made at Against the Grain. [see above]

I argued that even if various Church pronouncements on this matter are not magisterial, it is still an implausible state of affairs for the Church to have offered widespread sanction for this sort of thing (some sense of the word "torture" or "interrogation" - definition is crucial here) in the days of the Inquisition (even by St. Thomas Aquinas, if I am not mistaken), if, in fact, it is intrinsically evil.

That would mean that the Church sanctioned (even if only "non-magisterially") intrinsic evil, which would be akin to its sanction today of, say, abortion, or infanticide.

I make similar arguments regarding capital punishment and nuclear war. The Church has clearly sanctioned capital punishment in the past, and even today acknowledges that states have the right to permit it. Therefore, it cannot (like all war) be intrinsically wrong. That's more clear-cut, but there is still some analogy to the present discussion.

I think the Church either does, or comes darn close to, condemning nuclear war, in Gaudium et spes 80 ("Total warfare"). This may not be "magisterial" (I don't claim to know all the fine "canon lawyer" details), but even if it isn't, it remains the case that scarcely an orthodox moral theologian can be found who thinks that Hiroshima and Nagasaki are justifiable. So I think it is almost (but not quite) the case to speak of the "Mind of the Church" on that issue.

Bottom line: I think it is possible to envision some sort of "Mind of the Church" even if it is not technically magisterial, when there is a widespread consensus.

If you think that Church sanction of limited torture in the past was not magisterial, can you give me other examples where the Church sanctioned intrinsic evil and then later reversed itself? I don't find that plausible at all.

As far as I know, it never historically happened: not in its teachings (the Church never sanctioned, e.g., slavery, did it?). This is one reason I am a Catholic, because of the solid record on moral issues.

I agree with what Fr. Brian W. Harrison wrote, in a letter to Crisis magazine, in September 2005. It's consistent with my argument. I quote in part:

. . . we will search Scripture, Tradition, and the pre-Vatican II Magisterium in vain for any condemnations of torture (e.g., flogging) as a punishment for duly convicted delinquents, or as a means of extracting life-saving information from terrorists or other known enemies.

Fellow Catholics, I submit that we have a problem here. For the development of Catholic doctrine over time is supposed to flow harmoniously from what was taught 'always, everywhere, and by all,' according to the classic criterion laid down by Vincent of LĂ©rins. The Church is not supposed to be able to invent new doctrines out of whole cloth.

. . . our divinely authored Judeo-Christian constitution not only fails to prohibit the infliction of severe bodily pain, it explicitly invokes divine authority in mandating such practices: flogging, stoning, and even burning sinners to death (cf. Lv 20:1, 14; 21:1, 9).

. . . Also, if we are going to quote one ecumenical council (Vatican II) against torture, we cannot overlook the fact that another ecumenical council (Vienne, 1311-12) legitimized it.

. . . Scripture, Tradition, and the Magisterium are clear that capital punishment, whatever authoritative prudential judgment may be made by the Church regarding its applicability under modern conditions, is not intrinsically evil. But how is this coherent with the contemporary teaching that torture is intrinsically evil? Is being flogged - even with the biblical 39 stripes (cf. Dt 25:2-3) - really a fate worse than death?

. . . I do not pretend to know the answers. I ask for help. The only positive contribution I have to make at this stage is to suggest that Mark Shea is mistaken in claiming that 'the Church has answered' this question definitively against torture. The word 'definitively' applies only to infallibly proposed teachings of the Magisterium (either ordinary or extraordinary). And I believe few if any orthodox theologians would regard the conditions for infallible teaching as being verified in the texts cited by Mr. Shea (Gaudium et Spes 27 and Veritatis Splendor 80).

Fr. Harrison provides copious biblical documentation sanctioning various forms of "torture" or infliction of pain, in a lengthier article. In Part II he presents the evidences from Catholic tradition. He sums up:

The fact is that in the course of nearly two millennia, no infallible teaching either for or against torture (for any purpose whatever) had ever been laid down by the Church in either her ordinary or extraordinary magisterium. What we have seen is a disappointing magisterial silence during the patristic period, followed by a merely authentic magisterial teaching (cf. B1) against confession-extracting torture which prevailed in the late first and early second millennia. But this was then obscured, in theory and in brutal practice, for another half-millennium by an opposing sententia communis theologorum which was endorsed up till the 18th century by even saints and Doctors of the Church. Meanwhile, the per se liceity of severe pain-infliction as punishment for known offenders was constantly and universally upheld without the perceived need for specific magisterial interventions.

. . . 20th-century Communist and Nazi regimes, along with many other petty dictatorships, especially in Latin America, Asia and Africa - not to mention any number of proscribed terrorist and criminal organizations - had been clandestinely refining, and ruthlessly applying, any number of new and horrendous torture techniques.

That, I suggest, is essentially the kind of torture contemplated and condemned by Vatican II, and then subsequently branded by John Paul II, as one example of "intrinsically evil" practices among others, when he quotes the Council word for word in Veritatis Splendor #80 (cf. B12 above).


He makes a number of excellent, insightful points in Part II: too complex to summarize. I urge everyone interested in this issue to read his articles, if for no other reason than their encyclopedic scope.

You touch on what I believe to be the most important points in this debate, but I certainly agree . . . that we have to proceed carefully here or else we risk attributing a contradiction to the Church's Magisterium.

I suspect that what we will find, if we examine the documents closely, is that this issue is not unlike the teaching on usury, which has also been pointed to as a case in which the Church contradicted herself. As a professional apologist, I'm quite sure that you know the full story on that one, and are as familiar as anybody with the reasons why it is not a case of change in teaching but development of doctrine.

In the case of torture, as I pointed out in one of my earlier posts, the difficulty, it seems to me, is not so much in determining the moral licitness of torture, but in determining what sorts of acts fall under the concept of torture, just as in the case of usury it is not a question of the moral licitness of usury but of what sorts of practices are nowadays constitutive of usuriousness.

At any rate, I thank you for your comment, and especially for your clear and concise survey of Fr. Harrison's work.

I think what you have written is right on. I'm confident that the truth of the matter is along the lines of what you suggested, and that is a welcome common ground.

Would you agree that Mark Shea's strong polemics on this issue are not helpful at all? I would like to see him exercise a great deal more charity towards those who have a different opinion. Having often been subject to wild, uncharitable judgments myself, I know that it does no good to further constructive discourse.

That's not to say that those who differ from him have been perfect in charity, either. But he seems to be the highest profile voice (non-clergy) in the current stink. Apologists who are excessively, erroneously dogmatic do my profession no good!

We already have several negative stereotypes to overcome (know-it-alls, academic pretenders, etc.). Mark's behavior (wholly apart from the merits of his case) does not help the apologetic endeavor at all, in my opinion.

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Comments of Randy, on my blog, and my replies:

Mark has a lot more credibility in my mind because he is not simple defending Bush at all costs.

I didn't mention Bush at all in my posts. Political hypocrisy is also none of my concern: which is what the Church teaches.

It is often not the what that is being defended but the who. Choosing to defend JPII instead of GWB ruffles a few feathers even on Catholic blogs.

It's what exactly is being taught that is at issue. I hope most people out there are interested in truth rather than polemics.

I don't find it helpful to go back to some of the worst popes and darkest chapters in church history to try and find support.

Whether you think it is "helpful" or not, the Catholic must have some way of harmonizing past Catholic history with the present. No one is calling for the Inquisition again (least of all me). The issue is whether torture (however defined) is intrinsically evil or not, and what similar acts are not torture, in terms of how JPII defined it.

History judges acts. We know torture is soul destroying because we have been there.

How do you define it? Let's get at least one objective thing accomplished.

I think Vatican I limits the bounds of infallibility precisely because they knew there were dark chapters like this in church history. Infallibility was reserved to definitive teachings of popes and councils only. It seems like you are now trying to expand it.

My reasoning on this is precisely the opposite: I stated (and so did Fr. Harrison, whom I cited in agreement) that there is no infallible teaching on the subject. But there is still overwhelming consensus in past Church history, which cannot be ignored. You're trying to do so; so is Mark Shea. This won't do. A Catholic is not at liberty to thumb his nose at 2000 years of history. We're not (the more ahistorical type of) Protestants. We don't live in a vacuum.

Both sides can agree (as did Scott Carson) that we have to make some sensible synthesis of past and present.

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Hi Fr. O'Leary,

I appreciate the qualifier and apology. Thanks. [see his comments here and here]
You wrote:

Personally, I attacked your reasoning - that because the Church has clearly allowed something not unlike torture in the past, at the highest levels, its infallibility would be impugned if it now declared torture intrinsically evil.

You have misunderstood my argument. I may have worded it poorly in places, but the issue is very complex, and so I had to explain in detail as I proceeded, what exactly I had in mind.

My argument is actually designed to bypass the infallibility issue altogether (I made that quite explicit and plain in my reply to Scott Carson), but at the same time to acknowledge that these things (coercion of some sort) had very wide sanction in the Church. There are development of doctrine issues here that apply, I think, even if magisterial and infallibility factors do not. Even Fr. Harrison stated that no magisterial statements can be had.

This logically entails that anything else the Church countenanced in the past cannot be declared intrinsically evil, or just plain immoral. Thus you would be forced to maintain that the following are moral: the massacre of Protestants in 1572; the judicial murder of natives in India, the Philippines and Latin America under the Inquisition; confinement of Jews to ghettos, forcing them to hear sermons on their blindness, and to wear a distinctive costume.

Not at all. You have misconstrued my premise, so this doesn't apply. These would fall under the past sins committed by Catholics, for which JPII often asked forgiveness. One can argue, of course, whether popes sanctioned some of these, particularly the St. Bartholomew's Day massacre, which Popes Pius V and Gregory XIII had nothing to do with at all (nor even the French bishops). Catherine de Medici was responsible for that (though there was some sin in how it was in some sense "celebrated" - Catholic historian Warren Carroll sadly conceded this.). We get accused, for example, by the Orthodox for the sacking of Constantinople in 1204, but it is not often noted that the pope did not in any way, shape, or form sanction it: it was an evil act by loose cannon crusaders.

In any event, my position doesn't require me to somehow wink at or be forced to condone any sins in the past. Even what I condone, is in the sense of "not intrinsically immoral." That doesn't mean that many of these coercive techniques could not have become sinful on other grounds: bad motives, excess, revenge, lust for power, etc. This is why I have always thought very little of the Inquisition and the Crusades, while recognizing that neither was immoral per se, and that both had legitimate justification in the framework of the medieval worldview.

Hi DelRay [see his comment],

I don't have the answers on all this. You ask excellent questions, and they deserve the best answers they can get. I would have to defer to some of the other treatments from those who have studied it more closely. But a few thoughts, anyway:

Here's the thing, though: an act that is not intrinsically immoral can be made immoral by the ends it seeks to achieve. (That is correct, isn't it?

Yes. In that case it would be the overall combination of the not-intrinsically-immoral act and the immoral purpose for which it is being used and the evil intent. The latter two are where the sin and evil are located.

if we accept the idea that "torture" (however defined) is not intrinsically immoral,

We must distinguish between the following two propositions:

1. Torture is intrinsically immoral.

2. Coercive techniques that the Church has widely sanctioned in the past (albeit not magisterially) in the Inquisition(s), etc., are not torture in the sense intended by #1.

[One should also add a "2b": to the extent that these were indeed torture, they were not magisterially-sanctioned, so that a reversal does not constitute a problem for Catholic ecclesiology]
Mark Shea (and to varying degrees, those who generally agree with him) are asserting (ad nauseum) #1, but committing the fallacy or error of denying (or simply ignoring) #2 and asserting its contrary, almost without argument, and with much unnecessary invective and aspersion of motives; while at the same time overlooking the fact that this appears to be a blatant historical contradiction.

Mark's opponents in the debate (including myself) pretty much assume #1, but assert #2 as an additional crucial factor that must be taken into account. Definition and particular discussion is absolutely central, in their (our) opinion. In criticizing Mark for ignoring or mocking #2, some of his opponents have slipped into their own excessive polemics and rhetoric.

As far as I am concerned, the heart of the discussion for a Catholic lies in the realm of #2. #1 should be discussed insofar as the definition used or assumed has to be determined. Everything hinges on that. In any event, the history of the Church and what has been believed on this has to be considered.

I don't believe, myself, that Pope John Paul II (the Great) has contradicted past development of doctrine regarding these issues. The approach that I believe solves the seeming contradiction lies in the analysis of Fr. Harrison and Avery Cardinal Dulles, in his First Things article, "Development or Reversal?" [Slavery]

The solution lies in understanding the subtle nuances in
Pope John Paul II's language and the necessary distinctions in magisterial and non-magisterial beliefs and notions in the Middle Ages up to the present.

Whenever issues are complex and nuances and subtleties are ignored, and an "either/or / dichotomous mindset" employed, there is a ton of controversy. Hence, the present one.

We see the same dynamic in the predestination debates, "faith vs. works", "salvation outside the Church" discussions. It's always the same: things are assumed to be contradictory when upon closer inspection, they are not. So it gets very heated because folks talk past each other, and it is mutual monologue.

When Catholics such as Fr. Harrison and Cardinal Dulles take the past seriously and incorporate consistent development of doctrine into the equation, then the way is open for a satisfactory solution.

But when the past is ignored or mocked and ridiculed (the theologically liberal tendency), complete with all the usual anti-medieval stereotypes that Chesterton noted, or when the present Mind of the Church is ignored or mocked and ridiculed (the "traditionalist" tendency), then there is a problem.

The orthodox Catholic is obliged to take both into consideration. I'm trying to do so, minus the invective and rancor that has characterized this discussion thus far.

Your argument seems to allow for corporal punishment (is this the same as torture?) for the purpose of inflicting a just punishment on a wrongdoer.

It is undeniable that capital punishment is not intrinsically immoral (nor is all war; only unjust war). This is one of the strong arguments on my "side": how can all coercive techniques whatsoever be intrinsically immoral when even capital punishment is not?

The medievals thought that heresy was so serious that it should be punished at least as severely as mere civil crime. The civil criminal stole property or took someone's physical life. The heretic could potentially harm someone's (or many people's) eternal soul. Hence, if the murderer could be punished with death; all the more so, the heretic: the murderer of souls.

This is perfectly self-consistent. We reject it now, either on inconsistent secular/liberal grounds (the mentality that loves abortion and euthanasia but despises capital punishment), or on Catholic prudential grounds (it didn't work in practice and led to much corruption, and religious liberty is also a great good to be cherished and promoted).

My own positions on capital punishment and coercive techniques are more or less wholly analogous:

A) I oppose capital punishment except in the most extreme cases (mass murderers, tyrants, terrorists).

B) I oppose coercion except in the most extreme cases (mass murderers, tyrants, terrorists).
A cannot be denied because capital punishment simply is not intrinsically immoral. Likewise, B, which follows from A by solid analogy, cannot be denied. John Paul II's language, must, therefore, be more closely analyzed, because a certain simplistic interpretation of it involves great contradiction with past history. I don't believe for a second that this is what he intended, nor that the words absolutely entail it.

Read Cardinal Dulles and Fr. Harrison!

* * * * *


Teresa said...

This was extremely helpful. I am right with you with regards to EIT's or "torture". I don't believe these actions to be intrinically evil when used for the common good against terrorists to save innocent lives. These actions are not purposefully used against innocent human beings, like abortion, which is intrinsically evil. I have gone back and forth with Marc Shea and a couple other Catholics who claim that EIT's are intrinsically evil.

Dave Armstrong said...

Thanks for your comment, Teresa. The debate on Shea's blog has long been acrimonious and unhelpful, IMO. It's been beaten to death (no pun intended).

I was trying to get past the raw emotions over there and reach some objective conclusions.

I think a position of absolute opposition to all coercion does have to deal squarely with Catholic history.

cameron said...

Without condoning its use we can seek to understand why Church inquisitions sometimes resorted to torture. Our tendency is to assume that it was out of sadistic cruelty and a lack of respect for persons, truth, or justice.

Actually it may have arisen for the exact opposite reason – a very high regard for justice manifested in a desire to protect innocent persons from wrongful conviction for serious crimes, especially considering the severity of the punishments.

Legal historian John Langbein argues in his seminal work, Torture and the Law of Proof (1977), that in a “valiant effort…to exclude completely the possibility of mistaken conviction,” courts in 13th to 18th century Europe developed a system of proof in which only a confession or the testimony of two credible eyewitnesses was sufficient to convict in cases of serious crime. In so doing, they set the level of proof too high and, unable to obtain convictions in most cases, were forced to create a separate system in which physical torture was used to elicit confessions.

In the early Middle Ages a common means used to ascertain certain guilt before punishing an accused for a serious offense was the crude Trial by Ordeal, which sought divine intervention in settling matters. The Fourth Lateran Council forbade clergy from administering ordeals, striking a blow to its legitimacy. On the continent it was replaced by ancient Roman law.

Instead of ordeals Roman Law relied on material evidence, confession or two eyewitnesses of good standing as sufficient proof in capital offenses. Material or circumstantial evidence, however, was not considered sufficient proof in medieval courts since judges wanted to be absolutely certain before convicting (we now accept “beyond reasonable doubt”). The problem was one did not always have two good eyewitnesses or a freely given confession. Other than dismissing charges altogether the only other solution appeared to be accepting some circumstantial evidence or one eye-witness, not as a “full-proof” but as a “half-proof” – not sufficient to convict but enough to warrant further investigation. Testimony then had to come from the accused himself. Since “half-proofs” indicated possible guilt the use of torture was considered justified to settle the matter.

As a safeguard against false confessions wrought under torture the investigators were to seek details of the crime that “no innocent could know.” The accused had to repeat his confession after recovering and then again in court. Even if he later retracted his confession he was not supposed to be questioned under torture again. These safeguards, however, could be circumvented and abused.

“For all its evils,” Langbein reminds us, “torture was employed in aid of a rational as opposed to a ritual mode of proof. The use of torture presupposed a legal system that wanted to base judgment on the truth and thought it feasible to get the truth in part by means of regulated coercion.”

Contrary to popular myth inquisitors resorted to torture in only a small minority of cases and their methods did not include red hot pincers, the Iron Maiden, or the like. In fact the types of torture used by inquisitors were relatively mild compared to contemporary secular courts, as they were forbidden to use methods that resulted in bloodshed, mutilation or death. Whippings,beatings and later the strappado were used.

What eventually brought about the slow demise of judicial torture, according to Langbein, was not enlightened criticism of the system (its shortcomings had long been known) but modification of the Law of Proof that allowed for greater judicial discretion. Certitude as to guilt or innocence was no longer expected. This meant that convictions did not invariably require eyewitnesses or confession.

cameron said...

A different alternative to Trial by Ordeal was developed in Catholic England: Trial by Jury. English common law forbade torture in criminal cases unless with permission of the Privy Council (effectively meaning only for treason). However, if a person refused to enter a plea then peine forte et dure (i.e. pressing the person under progressively larger stones) was used to coerce a plea. The continental supporters of torture considered their system more “rational” than juries. “The English substitute” observers Langbein, “retained something of the ‘inscrutability’ of the ordeals.” Jurors were not professionals like judges or inquisitors and so might be easily swayed or might fail to judge impartially (initially juries included both accusers and witnesses).