Theological Themes in Criminal Justice

 
 

[1] As one of the members of the recently constituted task force for building a social statement on Criminal Justice for the ELCA, I have been asked to assemble a few key theological themes related to that topic. The following essay, then, is intended neither to break new ground in significant measure nor to sum up all possible perspectives on this plainly complex theme. It intends, much more modestly, simply to put on the table several key themes in Lutheran theological and social-ethical reflection which bear upon the issues of criminal justice. I hope to do this in a relatively non-controversial way. Veteran readers of this journal may not be overly challenged by the material, but current debates over ethical issues convince me that clarity and consensus at the outset of moral deliberation pays great dividends later on. After contextualizing what Lutheran theological social thinking is, we begin our brief look by examining some key Lutheran commitments related to the centermost circle in the figure below, the self, and will then work our way outward.

 

[2] Lutheran theology is exegetical, confessional, ecumenical, rational (public), and systematic thinking about the gospel of Jesus Christ, its presuppositions and its implications. Though it certainly has other characteristics, at least these five must be in place as our deliberations and moral discernment move forward. For most of its history Lutheran theology has not been a discipline distinct from social ethics. We should therefore resist the temptation to say that theology is “abstract theory” and ethics is “application of theory.” To say that a social statement is a document of social ethics does not mean that we can leave theology behind and immediately make policy recommendations and other more “practical” considerations. Rather, Lutheran social ethics is thoroughly a locus of theological reflection, honing and appropriating from dogmatics.

Theological Themes[3] Consider the schematic drawing above. We begin with the innermost circle, the self, and move outward. For each of the circles, I begin with a provocative quotation, highlight key classical Lutheran theological commitments, identify newer trends related to the topic, and try to note some implications that this has for thinking theologically about criminal justice and its system of enactment in modern America.[1]

 

[4] Provocative Quotation on the Self: “Man's capacity for justice makes democracy possible, but man's inclination to injustice makes democracy necessary.”[2] We can amend Reinhold Niebuhr’s insight to apply it to the criminal justice system. The penchant of humankind for wickedness and criminal behavior makes redressing those offenses necessary. But the goodness of humankind makes possible a system that is in fact just, efficient and honors the humanity of those with whom it deals.

 

[5] Key Theological Commitments: A. Humans are created in the image of God, and therefore hold a special place among God’s creatures. In addition to our bodily creatureliness, humans have something special about them. The name for what this “something special” is has varied over time. Possibilities have included conscience, language, reason, consciousness, self-transcendence, the soul, and others. The Roman Catholic document on Criminal Justice names this as human dignity.[3] While “dignity” is not often the framework used in Lutheran social ethics, Lutheran Christians do affirm the goodness and worth of each person as a uniquely loved child of God.

 

[6] B. Humans are endowed with the capacity for freedom. Lutherans espouse a robust account of human freedom in “earthly” matters (this is always situated, of course, conditioned by many things, never absolute, and always, when authentic, other-directed and God-serving). Not freedom from, so much, though this is present. It’s more freedom for. Freedom is a gift to be enjoyed as much as a right to be secured. But humans are never neutral with respect to God, and cannot by their own power come to God. In this sense, the will is “bound” or “captivated.”

 

[7] C. Sin is real, severe, and permanent. The root sin in Luther’s own theology is unbelief, the refusal to believe that the promises of God are true for you. This root sin has several effects – instead of relying wholly on God we seek to secure our own existence and success. This cuts us off from the others for whom we were created in life-giving relationship. We become, in that case, a “cor incurvatus in se” – a self turned inward upon oneself. Nonetheless, despite our root sinfulness (allow just one more Latinism!) we are declared simul justus et peccator – though a sinner, at the same time also justified in the eyes of God. Though “there is a great difference between the baptized and the unbaptized,”[4] the baptized still sin and are in enduring need of mercy.

 

[8] Newer Directions: A. One important new direction in Lutheran anthropological thinking is to conceive of the “image of God” as “right relationship,” rather than as some extra capacity that humans have and other animals don’t. Along this line of thinking, just as the triune persons subsist in their relationships to each other, so too are we products of the relationships that constitute our selves. No person becomes himself or herself without the influence, for good or ill, of others.[5]

 

[9] B. Do we need to identify sin exclusively with individual acts? No! Racism, sexism, institutionalized and enforced poverty in the 2/3 world are all social phenomena, and they are clearly counter to the will of God for the world. Christian theology rightly names them as sinful, though it is conceptually and practically impossible to reduce them to discrete acts of individuals. So our thinking about sin and the self as it relates to the system of criminal justice in this country will have to contend with the legacy of hyper-individualism we have inherited.

 

[10] Implications for the Criminal Justice System: Lutheran Christians have a basis for maintaining personal, individual responsibility. We are not fatalistic determinists. But our sense of the frailty of human capabilities, the ambiguity of human freedom and the likelihood of its abuse, and the pervasiveness of sinful intentions and their social effects makes us see something, which is, in the words of George Forell, “What is needed is a criminal justice system (and a society!) in which it is relatively easy to be law-abiding and responsible.”[6] The likelihood of being caught committing a crime should be high. The consequences of criminal activity should be quickly addressed. Since each person has worth in the eyes of God, Lutherans should countenance no policy which strips humans of their humanity. Since no one person is unambiguously moral, no one should be in complete control over the personhood of another.

 

[11] Provocative Quotation on Government: “On civil affairs our churches teach that lawful civil ordinances are good works of God, and that it is right for Christians to hold civil office, to sit as judges, to decide matters by the imperial and other existing laws, to award just punishments, to engage in just wars, to serve as soldiers, to make legal contracts, to hold property, to swear oaths when required by magistrates, to marry, to be given in marriage…The Gospel teaches an eternal righteousness of the heart, but it does not destroy the state or family. On the contrary, it especially requires their preservation as ordinances of God and the exercise of love in these ordinances. Therefore Christians are necessarily bound to obey their magistrates and laws except when commanded to sin, for then they ought to obey God rather than men (Acts 5:29).”[7]

[12] Lutheran “Political” Commitments: Here we come to another key insight of Reformation theology, the so-called “Two Kingdoms” doctrine. St. Augustine had spoken of the two “cities,” the divine one God intended to bring about on earth and the human one that opposed it. The Middle Ages saw the spread of “Christendom,” where all arenas of human action were of a piece with the church’s oversight, and speaking of the “sacred” versus the “secular” was not really conceptually possible. Lutheran social thought rejects both of these views. Even though the tenuousness of the Protestant Reformation bred a certain dependence on the state, Lutherans, as the above quotation from the Augsburg Confession indicates, have remained firm that the Christian as Christian is permitted and even required to criticize one’s government when it does not act as it should. On the other hand, Lutherans have long affirmed that the civil authority and its institutions have been created by God and are therefore good. One could say that the “left hand of God” rules through law and the “right hand of God through gospel.” This notion is sometimes called the “two governments.”

 

[13] The best way to put the matter, however, is to speak of the “twofold reign of God.” God is sovereign over both spheres of human interaction – God is sovereign over his church, and over the civil affairs of humans in their various political contexts. A helpful way to think about it may be to consider the word “as.” As a Christian, I am called to acts of mercy and self-sacrificial love. As a citizen, I might be called to, say, arrest a perpetrator, fire on an enemy combatant, or render a judgment in a court case. When the two directly contradict one another, one’s calling as a Christian must prevail. But faithful reflection can help us to see many ways that one’s calling in the civil, temporal domain of God’s creation is very often consonant with one’s deepest commitment to the gospel. That there is a certain reflexivity about human affairs in the world is what is captured by the Lutheran teaching on the twofold reign of God.[8]

 

[14] Newer Directions: Like most good theology, the notion of the twofold reign of God can be put to poor use. For example, the “orders of creation” theology of Paul Althaus and Werner Elert in Germany in the 1930s sought to make the status quo civil order untouchable by church critique, for which the Nazi party was doubtlessly grateful.[9] To say that the civil government (or its system of criminal justice) is a gift instituted by God is not to say that all its many possible forms are equally desirable.

 

[15] New voices also come from many liberationist perspectives, such as those from Latin America and from feminist theologians, who note how quickly the gospel can be made into a merely “spiritual” good. Much good theological reflection from these quarters has shown that a response to the gospel which cares only about the soul of one’s neighbor and not his or her material needs is insufficient and unchristian. The ELCA can helpfully keep in mind that caring for the needs of criminals, victims of crime, and all those touched by the criminal justice system is not simply the responsibility of the state.

[16] Implication for Criminal Justice: It is the will of God that human interactions with others occur in regular, ordered, and wholesome ways. Many institutions are created for this purpose: to make daily life predictable and manageable. These institutions include schools, hospitals, militaries, courts, families, economies, roads, social service agencies, and so on. The church therefore has the right to insist that these systems be ordered to the common good, and reserves the right to criticize those institutions when they do not so function.

 

[17] Provocative Quotation on the Church: In the recent biopic Walk the Line a record agent speaks in response to Johnny Cash’s proposal to record an album live at Folsom Prison: “Johnny, your fans are church-goers. You know, Christians. They want to hear you sing some gospel songs. They don’t want to hear you entertain murderers and rapists.” Cash replies, “Then they’re not Christians.”

 

[18] Lutheran ecclesiological commitments: The church is what happens when the word of God is proclaimed and the sacraments administered according to the gospel. The Roman Catholic statement on the criminal justice system contains a lengthy section on the “sacramental heritage” of the church as it related to criminal justice, particularly the sacrament of confession.[10] For reasons too complicated to go into here, the Lutheran church has largely lost that heritage.[11] Yet our understanding of what the church is and does still impinges strongly on how we understand the legitimacy and nature of a system of criminal justice. The church is the creation of the Holy Spirit, who gives it its basis in the Word. The Word of God must be understood as being both law and gospel. There are at least two uses of law, a civil use and a theological one. The theological use of the law confronts the Christian with his or her unrighteousness, driving the sinner back to God for mercy. The civil use of the law, however, restrains Christians from disobeying the commands of God in an orderly state. A recovery of the church’s proclamation of law in this sense, then, is relevant to an ongoing discussion of the criminal justice system.

 

[19] Newer directions: Lutheran articulations of the law have often highlighted the despair-inducing power of an unfulfillable law. The law can thus be seen as wholly negative – the civil use restrains otherwise bloodthirsty criminals-to-be, and the theological use condemns sinners before God. Yet must “law” be understood to have such totally negative connotations? The so-called “New Perspective” on Paul suggests not. Paul, advocates of this new perspective say, did not contrast a legalistic, lifeless, law-based Judaism with the new religion of Christianity, and so later views of Christians who see the law only as wrathful have missed part of Paul’s point.[12] Lutherans can learn from the Jewish sense of the “gift” character of law (Torah). Moses received the law as Israel wandered the wilderness. Law can come as good news when chaos is the alternative.[13] Freedom, after all is actually enhanced when good laws are present, not in their absence.

 

[20] Implication for the Justice System: Christians as individuals, congregations and indeed the whole church can and should advocate for reform of the criminal justice system, and for the closest approximation we can conscionably endorse of the civil law and the law of God.[14]

 

[21] Provocative Quotation on Christology: “How has Christ abolished sin, banished the separation between us and God, and acquired righteousness to render God favorable and kindly toward us? To this we can in general reply that he has achieved this for us by the whole course of his obedience.”[15]

 

[22] The above quotation from John Calvin reminds us that the significance of Jesus Christ for the world is shown across the whole range of his life and person. Theology generally speaks of five dimensions, or moments, to Christ’s saving person and work: Incarnation, Preaching/Ministry, Crucifixion, Resurrection, and Ascension.[16] Thorough consideration of each of these moments will be necessary for the church’s thinking on criminal justice, but inappropriate for an essay as brief as this one. Instead, I will simply outline three themes that cut across the five moments. They correspond to the saving significance of Christ in terms of solidarity, reconciliation, and redemption.[17]

 

[23] Lutheran Soteriological Commitments: First, Jesus saves us, in part, simply by being in solidarity with us. We feel alone, abandoned to our suffering. When we feel isolated in suffering, one of the worst things someone can say is ‘‘Oh – I know how you feel.’’ We want to reply, “No you don’t— how could you possibly know how I feel?’’ Thinking of Christ’s work as his being in solidarity with an estranged and isolated humanity means that, given his ministry and crucifixion, we cannot say that to God. He is Emmanuel – God with us. But not only do we feel alone in our suffering we also feel alienated and estranged from God. When we believe that our disobedience through sin truly displeases God, the situation worsens. But in Jesus Christ God was reconciling the world to God’s own self. Christ stands with us in our place of sin, and therefore it is no longer a place separated from God. Lest that sound like yet another hackneyed version of substitutionary atonement that trades on a kind of cheap reversal, we see that reconciliation is not brought about by a bloodthirsty God demanding repayment. Instead, reconciliation is about God coming to be with us in the place of sin, in a way that restores relationship with God and, in hope, God’s creatures.

 

[24] Then, in the third place, Christ redeems us. To speak of redemption implies not just isolation or estrangement, but bondage. Solidarity resolves a story with one element – our suffering. Reconciliation has two characters – God and us. But with redemption, there are three characters in the story: ourselves, our redeemer, and the jailer in whose prison we stand. Securing our release from the imprisoning powers of evil is often cast as a battle for souls. But we need not resort to warlike imagery, sticking instead to an insistence on the powerful love of God and the vulnerability such love risks.

 

[25] Implications for Criminal Justice: It cannot be stressed enough that the Lord all Christians worship was crucified as a criminal against the state. Important strands of Christian theology, including Luther himself, have insisted that Christ was not simply a wrongly-convicted criminal, but that he really was guilty.[18] The church rightly knows that no person is wholly without sin, and no person is beyond the reach of God’s love. The Lord Christ began his public ministry in Luke by quoting a passage from Isaiah that declares release to the prisoners (Lk. 4:18, Is 61:1). That Jesus Christ identified so closely with criminals in the justice system of his day need not imply that criminals have not done awful things, that punishment has no place in civil society, or that systems be in place to hold citizens accountable for their actions. But it does mean that in its impending moral deliberation about the criminal justice system, the ELCA will have to be much more careful in its thinking and critical in its conclusions than much of our modern society has been. Where modern American culture sees solutions to crime in ever more punitive sentences, skyrocketing rates of incarceration, and indifference or hatred toward criminals, the Lutheran church has an opportunity to discern a still more excellent way.

 



[1] Thanks go to Jordy Farrell for producing the figure.

[2] Reinhold Niebuhr, Children of Light and Children of Darkness (New York: Scribner’s, 1944) ix.

[3] “Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice,” Issued by USCCB, November 15, 2000.

[4] Formula of Concord 2.67.

[5] Though hundreds of recent monographs could be cited here, I would note two in particular: Alistair McFadyen, The Call to Personhood: A Christian Theory of the Individual in Social Relationships (Cambridge: Cambridge University Press, 1990); and David F. Ford, Self and Salvation: Being Transformed (Cambridge: Cambridge University Press, 1999).

[6] George Forell, “The Criminal Justice System: A Theological Perspective,” in Reform of the Criminal Justice Systems in the United States and Canada (Board of Social Ministry, Lutheran Church in America, 1972) 45.

[7] Augsburg Confession 16, emphasis added.

[8] A helpful discussion of this concept can be found in Carl E. Braaten, Principles of Lutheran Theology, 2nd ed., (Minneapolis: Fortress, 2007) 151-66.

[9] For an overview of this and related issues, see the penetrating book by William Lazareth, Christians in Society: Luther, the Bible, and Social Ethics (Minneapolis: Fortress Press, 2001), 2-30.

[10] “Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice.”

[11] Ronald Rittgers has written a fascinating account of the continuation and yet demise of private confession in the early Lutheran church. Cf. The Reformation of the Keys: Confession, Conscience, and Authority in Sixteenth-Century Germany (Cambridge: Harvard University Press, 2004).

[12] One well-written, if not completely compelling, argument to this effect can be found in E.P. Sanders, Paul and Palestinian Judaism: A Comparison of Patterns of Religion (Philadelphia: Fortress Press, 1977). A recent gathering of Lutheran theologians was dedicated to discussing the issues raised by Sanders and others in his camp.

[13] On this point, see the insightful essay by Gary Simpson, “Toward a Lutheran Delight in the Law of the Lord,” in Robert W. Tuttle and John R. Stumme, eds., Church and State: Lutheran Perspectives (Minneapolis: Fortress Press, 2000) 20-50.

[14] A renewal of the “natural law” tradition long latent in Lutheran social ethics is currently underway and signals a resource for supplying a vocabulary as to how this approximation might be possible. For just one example, cf. Carl E. Braaten, “Reclaiming the Natural Law for Lutheran Ethics,” in Journal of Lutheran Ethics, Oct. 2007.

[15] John Calvin, Institutes, 2.16.5, emphasis added.

[16] The last of these has admittedly received the least attention, particularly in the Modern West. For an insightful exception, cf. Douglas Farrow, Ascension and Ecclesia: On the Significance of the Doctrine of Ascension (Grand Rapids: Eerdmans, 1999).

[17] I have developed these themes at greater length in “The Vulnerable and Transcendent God,” in Dialog 44.3 (2005) 273-84.

[18] For Luther, cf. Sermons on the Gospel of John, in Luther’s Works, ed. Jaroslav Pelikan, et al., (St. Louis: Concordia, 1963) 22:167, and Lectures on Galatians (Gal 3:13) in Luther’s Works, ed. Jaroslav Pelikan, et al., (St. Louis: Concordia, 1963) 26:280.


 
 
© September 2009
Journal of Lutheran Ethics
Volume 9, Issue 9