DeGirolami on Wolterstorff on St. Paul’s View of Punishment

I’ve posted a  little reflection on Professor Nicholas Wolterstorff’s recent book, The Mighty and the Almighty: An Essay in Political Theology, which is part of a symposium to be published in the Journal of Analytic Theology. Here’s the abstract:

This short comment explores Nicholas Wolterstorff’s claims about expressivism and retributivism as justifications for the state’s punishment of criminal offenders in his book, “The Mighty and the Almighty.” It asks two questions about his account of expressivism and retributivism respectively, focusing on his interpretation of the reasons for punishment given by St. Paul in his Epistle to the Romans.

St. Paul’s Punishment Theory, Part I

Did St. Paul have a theory of punishment? In The Mighty and the Almighty, Paul Writing to the RomansProfessor Nicholas Wolterstorff argues that he did. In this post, I’ll lay out Prof. Wolterstorff’s claims. In the next, I’ll consider them and ask some questions about his interpretation and also about the merits of the punishment theory he ascribes to Paul.

Here’s the context. In Chapter 8 of the book, Wolterstorff has in mind only one of the two dualities of authority that make up his core thesis–the issue of state authority mediating divine authority. In discussing that issue, he explores the extremely difficult and dense Epistle of Paul to the Romans, and specifically Romans 12 and 13. Here Paul is giving some advice to members of the Church about how they should behave toward and within the various institutions that formed civil society: the family, business relationships, and the Roman empire, for example. In Chapter 12, Paul instructs Church members never to “avenge” themselves, but to “leave room for the wrath of God; for it is written, ‘Vengeance is mine, I will repay, says the Lord.'” Here is the text of the first seven verses of Chapter 13:

1. Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.

2 Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.

3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:

4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

5 Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.

6 For for this cause pay ye tribute also: for they are God’s ministers, attending continually upon this very thing.

7 Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.

Wolterstorff says that one standard interpretation of these two Chapters is that 12 contains instructions as to individual conduct, while 13 describes official state action. On that interpretation, the individual is not to “avenge” himself against wrongdoing, but the state may “avenge” that same wrongdoing. Wolterstorff equates “vengeance” with retribution, and so possibly with retributivist reasons for punishment. “The core idea of retribution,” he writes, “is paying back evil with evil, redressing the harm done to the victim with an equivalent harm done to the wrongdoer.” And in rejecting the standard interpretation of Romans 12 and 13, Wolterstorff claims that retributivism understood in this fashion is completely at odds with Jesus’s rejection of this sort of code of reciprocity, a rejection that Paul (at earlier points in Chapter 12 of the Epistle) repeats. From this, Wolterstorff ascribes to Jesus, and so also to Paul, a consequentialist understanding of punishment: “If hard treatment is to be imposed on the wrongdoer, let it be for the sake of achieving some good in his life and/or the lives of others.”

But there is a problem with this interpretation. For in Chapter 13, verse 4 of the Epistle, Paul speaks of the government “execut[ing] wrath upon him that doeth evil.” How does a minister of justice, who is himself also a minister of God in the Christian understanding advanced by Wolterstorff, execute wrath (God’s wrath?) upon the wicked without imposing punishment for retributivist reasons?

Wolterstorff offers the following solution. What this passage means is that the state is empowered to reprove and punish the evil-doer in the way that a parent reproves and punishes his or her children. Government, as the servant of God, has a “God-assigned task”: its function is not retribution but the expression of wrath in response to evil-doing, and the concomitant expression of support for the doing of good. Here is Wolterstorff:

As to what God authorizes the state to do, I am reminded of a way of understanding punishment that has recently entered the lists and that I find compelling, the so-called expressive theory….The expressive theory says that punishment of a wrongdoer should not be understood as retribution–redressing harm with harm–but as a way of reproving what he did and of expressing anger at him for having done it. Speaking anachronistically, Paul was employing the expressive theory of punishment rather than the retributive theory in stating what God assigns government to do. (88-89)

Yet Wolterstorff does not believe that Paul is urging the state to express God’s wrath; precisely whose wrath the state is empowered to express is left unclear. In fact, in light of the “social benefits that Paul cites of government carrying out its assignment,” it seems that the expression of (somebody’s) wrath is only one sort of consequentialist justification for state-imposed punishment. Wolterstorff interprets Paul as advocating a more broadly liberal, consequentialist theory of punishment, to include deterring wrongful conduct: “The God-assigned task of government is to exercise governance over the public for the curbing of wrongdoing.” (90)

These are the broad outlines of Wolterstorff’s interpretation of St. Paul’s theory of punishment. In my next post, I will raise some questions both about the interpretation and about expressivist theories more broadly.

Skotnicki, “The Last Judgment: Christian Ethics in a Legal Culture”

last-judgment-christian-ethics-in-a-legal-cultureIn March, Ashgate published The Last Judgment: Christian Ethics in a Legal Culture by Andrew Skotnicki (Manhattan College). The publisher’s description follows.

In a culture obsessed with law, judgment, and violence, this book challenges Christians to remember that Jesus urged his followers to judge no one, bring harm upon no one, and follow no law save the law of altruistic love. It traces Christian history first to show that Christians of an earlier age took very seriously the gospel injunctions against punitive legal judgment and then how the advent of formal legal codes and philosophical dualism undermined that perspective to create a division between a private Christian spirituality and a public morality of order and legally sanctioned violence. This historical approach is accompanied by an argument that the recovery of a Christian ethic based upon unconditional love and forgiveness cannot be accomplished without the renewal of a Christian spirituality that mirrors the contemplative spirituality of Jesus.

Schieber, Conway, and McCarthy, “Where Justice and Mercy Meet”

Where Justice and Mercy MeetThis February, Liturgical Press will publish Where Justice and Mercy Meet (2013) edited by Vicki Schieber (Catholic Mobilizing Network), Trudy D. Conway (Mount St. Mary’s University), and David Matzko McCarthy (Mount St. Mary’s University). The publisher’s description follows.

 Where Justice and Mercy Meet: Catholic Opposition to the Death Penalty comprehensively explores the Catholic stance against capital punishment in new and important ways. The broad perspective of this book has been shaped in conversation with the Catholic Mobilizing Network to End the Use of the Death Penalty, as well as through the witness of family members of murder victims and the spiritual advisors of condemned inmates.

 The book offers the reader new insight into the debates about capital punishment; provides revealing, and sometimes surprising, information about methods of execution; and explores national and international trends and movements related to the death penalty. It also addresses how the death penalty has been intertwined with racism, the high percentage of the mentally disabled on death row, and how the death penalty disproportionately affects the poor.

 The foundation for the church’s position on the death penalty is illuminated by discussion of the life and death of Jesus, Scripture, the Mass, the Catechism of the Catholic Church, and the teachings of Pope John Paul II. Written for concerned Catholics and other interested readers, the book contains contemporary stories and examples, as well as discussion questions to engage groups in exploring complex issues.

DeGirolami, “The Punishment Jurist”

I have a new paper, which is a chapter contribution for what will be a conceptual history of several foundational writings in criminal law and punishment.  It’s called, The Punishment Jurist, and deals with the thought of Sir James Fitzjames Stephen, a judge of the Victorian period.  The essay is more about criminal punishment than about law and religion, but there is a good bit about the latter as well.

In his major work of scholarship — the History of the Criminal Law of England (1883) — Stephen discusses (at the end of Volume II) the issue of “offenses against religion.”  And one of the matters he takes up is the crime of witchcraft.  I discuss his views of witchcraft and other offenses against religion to rebut the oft-heard and erroneous claim that Stephen believed the realms of morality and criminality to be co-extensive (notwithstanding his belief in the important connections between the two, and in turn between morality and religion), and the claim that Stephen is a punishment consequentialist full stop.

Comments are welcome.

Deutscher, “Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara”

This December, University of Toronto Press, Scholarly Publishing Division will publish Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara by Thomas B. Deutscher (St Thomas More College, University of Saskatchewan). The publisher’s description follows.

Punishment and Penance provides the first comprehensive study of an Italian bishop’s tribunal in criminal matters, such as violence, forbidden sexual activity, and offenses against the faith. Through numerous case studies, Thomas B. Deutscher investigates the scope and effectiveness of the early modern ecclesiastical legal system.

Deutscher examines the records of the bishop’s tribunal of the northern Italian diocese of Novara during two distinct periods: the ambitious decades following the Council of Trent (1563–1615), and the half-century leading up to the French invasions of 1790s. As the state’s power continued to rise during this second time span, the Church was often humbled and the tribunal’s activity was much reduced.

Enriched by stories drawn from the files, which often allowed the accused to speak in their own voices, Punishment and Penance provides a window into the workings of a tribunal in this period.

Christianity and the Problem of Deep Retribution and Rehabilitation

Prompted by an inquiry from Rick Garnett, I took a look again at Jeffrie Murphy’s wonderful book, Getting Even: Forgiveness and Its Limits (2003), about which I’ve written a little before.  Chapter Nine, entitled “Christianity and Criminal Punishment,” contains the following interesting passage about the relationship of Christianity and retribution.  But I think it also says something useful about rehabilitation.

But what about retribution?  Is it a legitimate objective on a Christian view of punishment? . . . . This depends, I think, on just what one means by “retribution.”  In the philosophical literature on punishment, retributive punishment is usually understood as giving the criminal what he, in justice, deserves.  There are, however, at least six different accounts of what might be meant by “desert” and thus at least six different versions of retributivism: desert as legal guilt; desert as involving mens rea (e.g., intention, knowledge); desert as involving responsibility (capacity to conform one’s conduct to the rules); desert as a debt owed to annul wrongful gains from unfair free riding (a view developed by Herbert Morris); desert as what the wrongdoer owes to vindicate the social worth of the victim (a view developed by Jean Hampton); and, finally, desert as involving ultimate character — evil or wickedness in some deep sense (a view that Kant calls “inner viciousness”) . . . .

It seems to me that there is no inconsistency between the essentials of Christianity and the first five forms of retribution noted.  With respect to the sixth, however — what I will call “deep character retributivism” — there does seem to me to be an inconsistency . . . .

Read more

O’Donnell on Religion and Capital Punishment

I enjoy looking through Patrick O’Donnell’s bibliographies on various subjects, and this post — with some thoughts (generally negative) about the relationship between capital punishment and certain religious ideas — as well as the link to an instructive list of references, is both interesting and useful.

Religion and Punishment as Sources of Social Control

The Ohio State Journal of Criminal Law has just published an issue on punishment theory and culpability, with special editor Mitch Berman at the helm for this issue.  There are some exceptional contributions from the likes of Larry Alexander, Kim Ferzan (twice!), Doug Husak, Ken Simons, Peter Westen, and Gideon Yaffe.  And there’s something by me, too.

The law and religion connection of my piece relates to Sir James Fitzjames Stephen’s special interest in religion as a source of social control — much more powerful, he believed, than law.  I’ve got a little bit on this issue in my piece, though it deserves a full length treatment.  At any event, I hope readers interested in these issues will enjoy the various articles.

Me Next Week

Just a little note on a couple of talks I am giving next week, in case CLR Forum readers have a chance to stop by and say hello.

On Wednesday, April 18, I’ll be participating in a panel at Yale Law School run by the Yale Catholic Law Students’ Association dealing with the HHS Mandate and Religious Liberty.  The discussion begins at 6:00.  More details about the event here.

On Friday, April 20, I’ll be at the University of St. Thomas under the auspices of the Terence J. Murphy Institute’s Hot Topics: Cool Talk program run by the gracious Lisa Schiltz.  The Honorable Richard Sullivan of the U.S. District Court for the Southern District of New York will be joining me.  I’ll be talking about the state of punishment theory and will discuss (a little bit) some of the insights of Sir James Fitzjames Stephen and Thomas Aquinas with respect to the justification of punishment (I hope to give a cool talk, but the odds are not so good).  Details here.