Retributive Justice: A Penitential Pedagogy

 
 

[1] The ancient and still widespread conception of justice as retributive, Desmond Tutu, Howard Zehr, Christopher Marshall, and others have argued, needs to be replaced by an emphasis on the themes of forgiveness and restoration developed in Jesus’ ethic of love and reconciliation.[1] Many theologians have begun to defend versions of what is now widely called “restorative” justice—a forward-looking view that emphasizes the social context of harms and attends to healing the harm done to victims—as an alternative to the common Western adherence to a retributive justice that focuses on punishing offenders for individual crimes. The latter, they suggest, amounts to little more than institutionalized vengeance, and offers nothing like the hope of genuine renewal made possible by forgiveness.

[2] In this article I offer a succinct portrayal of a conception of retributive justice that shows the problematic nature of attempts to draw a bright line between retributive and restorative conceptions of justice, and the corresponding falsity of many claims about what retributivism must be.[2] While I admit that many advocates of retributive justice have done little more than angrily express an intuition that wrongdoers deserve to suffer—with the result that the basis of the retributive ideal has been obscured and distorted—there are a number of good reasons to value a retributivist conception of justice. Moreover, the Christian tradition’s understanding of retributive justice has (at its best) been more lovingly “corrective” than many of its critics have allowed.

[3] St. Augustine agreed with some of the claims of non-retributionists when he commented that Jesus’ talk of turning the other cheek directs his followers not to seek compensation for crime through revenge.[3] It profits us nothing to strike those who have struck us; we cannot restore our bodies by attacking the bodies of those who did us harm. Yet Augustine argued that Christians nevertheless have good reasons to punish: we should punish for the sake of correction, as compassion itself dictates. Only those who do not hate, but are prepared to endure further injury at the hands of those we wish to set on the right path, are able to punish in a manner like the loving God who punishes the son in whom he delights. I develop this Augustinian conception of retributive justice in the rest of this essay (though not always in ways that Augustine himself can be said to have anticipated).

[4] Augustine makes it clear that the goal of retributive justice is restoration to something like primary justice, in both individual and communal relationships. The central issue at stake between him and critics of retributive justice is how that restoration should be sought. Many proponents of restorative justice are motivated by a belief that Western criminal justice systems are poorly motivated and organized, especially in the way they handle prison sentences; so it should be noted from the start that a “pedagogical” retributivism like Augustine’s motivates agreement with these concerns.[4] At the same time, we need to think carefully about the logic of corrective justice in order to make consistent arguments about justice, criminal and otherwise, that do not have problematic implications.

[5] Those who reject the idea of retribution often challenge intuitions about what might seem a “proportionate” retort to evildoing, because they find the codes of punishment commonly associated with such ideas too vindictive. As an alternative to a focus on blame that leads to a spiral of hate, we should try to heal. My contention is that blaming is not necessarily at odds with healing. Moreover, rejecting attempts to determine individual blame and mete out proportionate punitive responses has the unintended consequence of jettisoning the idea that there are intrinsic limits to what one can fairly do in the name of restoration or reform. Reform and restoration must be among our aims. But if we only aim at them, we are in grave danger of treating persons inhumanely, precisely because we are ignoring retributive limits on what can be done to evildoers in the attempt to make them good.[5]

[6] A properly developed theory of retributive justice can address both these worries and concerns about restoring victims and perpetrators. As Augustine notes in his defense of corrective and compassionate punishment, according to Scriptural testimony, both the Christian God and the prophets have a long history of punishing evildoers. God may not be required to do so, and does not apply exactly the same punishment for every kind of crime—for instance, God reduces Cain’s sentence after Cain pleads with God—but God does punish; and people who receive those punishments are generally thought to deserve them for their culpably evil hearts or actions. This is not something Biblical authors feel bad about—rather, they celebrate the fact that God responds to wrongs in the ways God does, and when God does not seem to do so, they sometimes get upset, because one aspect of divine goodness is that God stands up for those who have been injured. For instance, God is said to be ultimately responsible for the destruction of kings who worship their own status and do not obey divine commands, such as Ahab. In acting thus, God is not simply thought to be vengeful; as the prophets indicate, God is sending a message about what God stands for.

[7] To be sure, this punishing deity is also thought to be forgiving, gracious and compassionate, slow to anger and abounding in love. Scholars sometimes suggest this face of God is not compatible with the God of wrath of whom we were just speaking. More orthodox theologians have suggested that the God of mercy has overcome wrath, because of Jesus’ accomplishments. This line of thought has led Miroslav Volf, for instance, to suggest that Christians—who ought to forgive, given what Christ has done for us—should not be able to find a place for retributive justice or punishment.[6] By contrast, in what remains of this essay I build on what R. A. Duff calls a communicative theory of retributive justice to develop a theological conception of retributive justice that is both merciful and just, and has a place for both punishment and forgiveness.[7]

[8] The point of retribution, on this view, is to right wrongs and to do so by addressing both victims and offenders. Such corrective activity is pursued via more than words—it is done through actions that seek change, and are communicative in doing so. While evils cannot simply be erased by retribution (the past cannot be undone), persons can change; it is through such change that retributive justice seeks to right wrongs.

[9] The kind of wrongs that need to be righted by retributive justice are the culpable evils we call sin—evils for which a person is responsible and blameworthy. At least part of what makes sin wrong is that it inappropriately calls the worth of others into question. Whether sin can in fact degrade the worth of persons loved by God is not a question that should be taken up here, so I will merely say that sin injures in that it speaks a lie about the worth of the persons sinned against. Sin might also harm—it might also impact a victim’s well-being in a bodily, economic, or other manner.[8] But sin’s central injury is its falsehood. Retributive justice is an appropriate response to sin in that it addresses the false message sin conveys—it challenges that lie, in multiple ways.

[10] First, retributive justice is the attempt to communicate to one’s community that the sin in question really is a lie. Ahab really was a bad king, unwarranted in taking Naboth’s vineyard from him—that is what Ahab’s lack of success and his wife’s unsettling death communicates about him, according to the books of the Kings. The worth and goodness of their victim was thereby vindicated in the sight of all. And doing that required more than a speech; it required a performative censure of the offenders’ actions, and (in this case, though not, perhaps, every case) their intentions and character, as well.

[11] Second, in a closely related matter, retributive justice communicates with a second audience, the primary victim or victims. Again, it makes a very concrete statement that their worth is higher than the offender’s injurious behavior suggested. To bring this point home, it might be appropriate to do something positive for the victim. We might, for instance, want to celebrate a person who has been falsely accused, which is one of the things that vindicates Mordecai in the book of Esther.[9] The main point is, again, that more than mere words are called for. As the existence of the liturgy implies, because we are not just spiritual but embodied creatures, we require concrete, material manifestations of moral and spiritual realities. It is through such performative utterances that we can seek to re-establish the victim’s worth.

[12] In seeking to restore the victim from injury, retributive justice also calls for reparations to the victim—but not by just anyone. It is not enough for just any third party to respond to the victim; something is missing unless the amelioration is sought by the offender who injured. Moreover, something is missing from the above two ideas if the offender will not admit the victim’s worth, taking back the earlier lie, and censuring her or himself for his evil. Thus, the offender must be communicated with as well. In addressing offenders retributively, we both have the good of victims in mind and the good of offenders in mind. Retributive justice requires censuring the offender’s lies and evil behavior. It also calls for offenders to repent, and to take action that will seek to repair the injury and harm done.

[13] The fact that this is a communicative theory of retributive justice places inherent limits on how we can treat offenders—we must treat them as rational creatures like ourselves, with their own worth, with whom we can have a kind of conversation. The aim of whatever treatment we select is to help offenders see that what they did is wrong, to sorrow over that, to seek to change, and to seek to do what they can for their victims, or others like them. The idea of a proportional response, then, is not simply that the punishment should be like the crime, but that it should fit the crime in a deeper sense: it should seek to teach in a manner that brings home the seriousness of the injury. Thus, this is a pedagogical approach to retribution, an attempt to counter the falsehoods of sin.

[14] Not all teaching of offenders has to involve coercive treatment that goes against the will of the offender. Thus, retributive responses need not necessarily or solely take the form of punishments. The ultimate goal of a properly retributivist system of justice is apology (a humbling of oneself before one’s victims), and ultimately reform and restoration to community as a citizen who recognizes others’ value more fully. Though it does not and should not preclude other (often material) attempts at restitution, such reform is the best compensation to victims, because it undoes the falsehood performatively uttered about the victim as best as human beings can.

[15] As I expect parents will recognize, there are times when offenders must be coerced, if there is any hope of getting them to face up to their sin; they must be made to look into the face of their evil if they are to have the opportunity of recognizing it as such, and changing. Duff argues that the paradigm case of communicative retributive punishment is forcing offenders to face up to the implications of their crimes by seeing their effects, via efforts at mediation that seek to move offenders to repentance by bringing home the nature and seriousness of their crimes. This can be done by giving them the opportunity to confront their wrongdoing, and by trying to grant them the space necessary to confront what is going on and has gone on in their lives. Appropriate kinds of community service can be invaluable here, but so can isolation from community, for a time. Far from being hateful, such “hard treatment” can be part of a system of penance that publicly both censures wrongdoing and offers offenders the opportunity to internalize that censure, to feel guilty, to value a new kind of life, and to begin to develop the habits necessary to live that new way of life out. In addition, probationary strategies that are not simply watchful but integrative and supportive are crucial for these steps on the road to reformation and, hopefully, reconciliation.

[16] Such coercive treatment differs from vengeance in its motivation, and limits: it seeks renewal in offenders rather than their elimination. Retributive punishment is not a vindictive attempt to get back at offenders but, as Augustine suggested, a compassionately motivated challenge to offenders to see themselves and their relationships in a new light. In general, appointed community leaders should censure and correct the behavior of those who violate public norms and the public trust; primary victims of offense are not in a good position to communicate these things on their own behalf, not only because they may have been incapacitated by the offense, but because they should not be asked to vindicate themselves. Moreover, because the entire community is offended by crime, communal representatives should censure it.

[17] Far from being at odds with the ideals of forgiveness and reconciliation, a pedagogical approach to retributive justice serves them. A forgiveness that is morally and theologically serious—one that does not simply let bygones be bygones, but rather seeks repair of evildoers and their relationships—should (at least) have a place for institutions of penance of the sort called for above. Seeking retributive justice is properly understood not as an alternative to an ethic of forgiveness but part of one. As Karl Barth argued in his Church Dogmatics, in saying Yes to us by sternly saying No to the lies in which we participate, in resisting us when we think we are strong and directing us forward when we despair of new life, divine forgiveness fits sin’s complex passivity and activity. The divine “No” is echoed in the conception of retributive justice sketched here, but so also is the divine “Yes.” The retributive censure of evil is not merely destructive, for it is constructive in seeking to claim evildoers for good, with the hope of restoring them to right relationships with those they have offended.[10]


[1] Cf. Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (Scottdale, PA: Herald Press, 1990); Desmond Tutu, No Future without Forgiveness (New York: Image/Doubleday, 2000) 54-5; Christopher D. Marshall, Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment (Grand Rapids, MI: William B. Eerdmans, 2001).

[2] I am not the first to do so—see, for instance, Kathleen Daly, "Restorative Justice: The Real Story," and R. A. Duff, "Restorative Punishment and Punitive Restoration," in Restorative Justice Reader: Texts, Sources, Context, ed. Gerry Johnstone (Portland, OR: Willan Publishing, 2003); Andrew Skotnicki, Criminal Justice and the Catholic Church (New York: Rowman & Littlefield, 2007)—however, theological attention to such work as been wanting. Zehr has begun to agree that distinctions between retributive and restorative justice are overdrawn; see Howard Zehr, The Little Book of Restorative Justice (Intercourse, PA: Good Books, 2002) ch. 4.

[3] St. Augustine, "Our Lord's Sermon on the Mount, According to Matthew," in Nicene and Post-Nicene Fathers of the Christian Church, ed. Ed. Philip Schaff (Grand Rapids, MI: William B. Eerdmans, 1886) 61-3.This reference is to the paragraph in Augustine’s commentary, not to a page number.

[4] In calling this retributivist view pedagogical I mean to invoke more than the idea of an intellectualist education; what sinners need corrected is not simply their acts, or beliefs, but their hearts.

[5] Cf. C. S. Lewis, "The Humanitarian Theory of Punishment," in God in the Dock: Essays on Theology and Ethics, ed. Walter Hooper (Grand Rapids, MI: William B. Eerdmans, 1970).

[6] Miroslav Volf, Free of Charge: Giving and Forgiving in a Culture Stripped of Grace (Grand Rapids, MI: Zondervan, 2005) 160-73.

[7] R. A. Duff, Punishment, Communication, and Community (New York: Oxford University Press, 2001).

[8] I owe the distinction between injury and harm to Jean Hampton, "Righting Wrongs: The Goal of Retribution," in The Intrinsic Worth of Persons, ed. Daniel Farnham (New York: Cambridge University Press, 2007).

[9] Jean Hampton makes this suggestion in ibid.

[10] I am grateful to Kathryn Getek and Victor Thasiah for their comments on an earlier draft of this paper.


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