John Noonan on Development of Moral Doctrine and Capital Punishment: A Cautionary Tribute from the Time of Pope Francis

60 Pages Posted: 3 Jun 2020

Date Written: May 27, 2020

Abstract

John Noonan (1926-2017) was a giant in American Law. A distinguished judge of the U.S. Court of Appeals for the Ninth Circuit for three decades, he was also a scholar of the first rank. From his Holmes Lectures at Harvard in 1972 to his capstone book A Church That Can and Cannot Change (2005), Noonan famously defended the thesis that "the central problem of the legal enterprise is the relation of love to power." This paper explores Noonan's understanding of how the moral demands of love both emerge from and drive the development of moral doctrine in the tradition that was his own, the Catholic tradition. The paper begins by laying out Noonan's account of how moral doctrine ought to develop and then applies that normative account to Pope Francis's recent teaching, in apparent contradiction of all previous popes and many saints and doctors of the Church, that capital punishment is now "inadmissible." The question addressed is what Catholics are to do, according to Noonan, with a papal judgment that capital punishment is "inadmissible" yet not, apparently, malum in se. Reaching the conclusion that Noonan's norms for development in morals are radical in their implications for change in the Catholic Church, the paper concludes by asking whether Noonan has not unintentionally approved a papacy unbounded. The paper was an invited contribution to a conference in Noonan's honor at Berkeley Law in September 2019.

Keywords: Capital Punishment, Death Penalty, John Noonan, Catholic Church, Pope Francis, Moral Doctrine, Development, Love, Justice, Glucksberg, Religious Liberty, Conscience, Coercion, Usury, Slavery, John Henry Newman, Jacques Maritain

Suggested Citation

Brennan, Patrick McKinley, John Noonan on Development of Moral Doctrine and Capital Punishment: A Cautionary Tribute from the Time of Pope Francis (May 27, 2020). Available at SSRN: https://ssrn.com/abstract=3612818 or http://dx.doi.org/10.2139/ssrn.3612818

Patrick McKinley Brennan (Contact Author)

Villanova University School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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