Judge John Noonan on Development of Moral Doctrine and Capital Punishment

Berkeley Law held a marvelous conference last Fall in honor of Judge John T. Noonan, Jr. (1926-2017),  for whom I clerked 1993-1994.  The clerkship with John Noonan was one of the great experiences of my life, and so I considered it a singular honor to be invited to deliver a paper about the man from whom I learned so much first as a student of his many studies, then as his law clerk, and finally as a conversation partner about the widest range of things.  Noonan was a great judge, a polymath, an original thinker,  a fine and gentle man, and a faithful Catholic.  I am forever grateful for all of the time I had with him.   The abstract of the paper, "John Noonan on Development of Moral Doctrine and Capital Punishment: A Cautionary Tribute from the Time of Pope Francis," follows:

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 is available here.