Monday, December 21, 2015

Retributive Punishment and Christian Forgiveness

Alexander Pruss has a recent post  which I reproduce below, expressing a number of things I have discussed here over the course of this blog's short history.  Commentary throughout.

Start with this argument:
1. Christians ought to forgive all wrongdoing.
2. Forgiving includes foregoing retribution.
3. All ought to forego retribution in the absence of [presence of?] wrongdoing.
4. Therefore, Christians ought in all cases to forego retribution.
And, yet the following also seem true:
5. Retributive justice is central to the concept of punishment.
6. Punishment is often needed for the public good.
What is the Christian to do? Well, one thought is that we should weaken (1). Thomas Aquinas in his sermons on the Lord's Prayer says that we are only required to forgive those who ask us for forgiveness. (After all, Christ tells us to expect God to forgive us as we forgive others; but we do ask God for forgiveness.) Forgiving the unrepentant is supererogatory, he says. That weakens the conflict between the displayed claims. Nonetheless, there are times when the criminal justice system needs to punish someone who we have good reason to think is repentant, because the risks to society of letting her go free may be unacceptably high. Furthermore, Aquinas's modification of (1) doesn't help all that much because the supererogatory is by definition always right. So even with Aquinas's modification of (1), we still seem to get a conflict between forgiveness and the needs of the public good.

TB: One might distinguish between forgiveness as conditional, the way Pruss does here, or as unconditional, or both.  On the conditional understanding, not only am I required only to forgive those who ask, but it is impossible that forgiveness occurs without the wrongdoer admitting his wrong and asking for forgiveness.  Alternatively, we might think that forgiveness can be (at least partly) achieved by the wronged party treating the wrongdoer as having the punishment already waved even if the wrongdoer does not ask for forgiveness, or as treating the wrongdoer as if he had not committed the offense.  I favor the latter understanding (but this is a blog post and subject to revision.)  I can forgive you by waving my right to punish you for having wronged me or treating you as if you had not wronged me (even if a punishment remains in place). This does not mean either that I am required to do so or that there are instances where I should not do so (for example if I know that in doing so it would increase your unjust resentment towards me.)   But how could I forgive you while a punishment is left in place?  Read on.

Another move, and it may be the most promising, is to distinguish between the individual and the community. Forgiveness is the individual Christian's duty (or at least supererogation--but for brevity I won't consider that option any more), but there are wrongs that, on account of the public good, the community should not forgive. I think this is a quite promising option, but I am not completely convinced. One reason I am not convinced is that Catholic social teaching allows for the possibility of a Christian state, with Vatican City being an example. And there is some plausibility in thinking that the Christian state should behave rather like the Christian individual, but a Christian state has need of punishment for safeguarding the public good. Now maybe forgiveness and punishment are one of the things that varies between the Christian individual and the Christian state, so that the individual should forgive while the state sometimes is not permitted to do so. But it would be good to have another approach.
TB: I don't find this avenue promising.  Suppose you have committed a series of batteries and homicide.  In jail you come to see that you have done wrong, wish you had not done wrong, and ask for forgiveness.  The Pope forgives you and wishes your restoration to the community.  But because of deep seated vices on your part, you remain in jail, in part for your own sake and the protection of the community as well as for deterrence effect.
This also happens on a smaller scale between parents and children.  Sometimes children come to see that they have done wrong and ask for forgiveness.  The parent forgives the child but tells the child that he must remain in timeout for 20 minutes until remaining anger towards a sibling subsides; as well, one notes that it's good for the child and the siblings to know that actions have consequences.
The point: One can forgive another, and sometimes one has a duty to forgive but at the same time can also have a justifying reason to punish.  By forgive I mean treating one as if the particular wrong had not occurred.  I see no reason for thinking that an authority in a Christian state could not have a duty both to forgive and to punish.  One could treat the wrongdoer as if the particular wrong had not occurred while still recognizing the underlying vice which calls for a punishment to remain in place.

Think about sports and victory. The very concept of a fencing match cannot be understood apart from seeing it as a practice whose internal end is getting to a score of five before the opponent does. Nonetheless, it is possible to have a friendly and honorable match where no one is intentionally pursuing victory. Rather, the players are exercising their skills in excellent ways that tend to promote victory without actually seeking victory. (The clearest case may be a parent fencing with a child and hoping that the child's skills are so good that the parent will be defeated; but one can have cases where each wants the other to win.)
Similarly, perhaps, just as sports cannot be understood apart from victory, punishment cannot be understood apart from retribution.
TB: I think punishment--moreover, just punishment--can be understood apart from retribution. In part because I think Jesus forbids retribution but not punishment (moreover, it would take a powerful theory to convince me that Jesus thought parents should never punish children.)  As well, I think the basic concept of punishment pulls apart from retribution.  Here is a stab at a definition of punishment:  Punishment is harsh treatment in response to perceived wronging which by the act of the harsh treatment is meant to censure or condemn the type of act committed which is perceived to be wrong.

I say "perceived wronging" to rule out cases where one punishes unjustly--where the party is punished but was innocent.  I add that the harsh treatment is meant to censure or condemn to distinguish punishment from harsh treatments in self-defense or actions in war.  (For the harsh treatment to be meant to censure or condemn the action, though, one need not be consciously or occurently intending this as part of its end.)

This definition also has the virtue of being compatible with having various reasons for punishment.  One of those might be retribution.  Another might be deterrence of crime.  Another prevention of crime.  Another correction.  And so on.

But just as there are reasons besides victory to play, there are reasons apart from retribution to punish. In those cases, punishment is not intended by the agent. (Another example: I have argued that sex cannot be understood apart from its reproductive end; however, agents can permissibly refrain from pursuing reproduction in particular cases of sex.) This suggests that perhaps we should weaken premise (2) of the initial argument to:
7. Forgiving includes refraining from pursuit of retribution.
TB: I don't understand the difference between "forgoing retribution" in 2 and "refraining from pursuit of retribution" in 7.  
The weakened argument only yields the conclusion that Christians ought to refrain from pursuing retribution. But refraining from pursuit of retribution may well be compatible with punishment. And the public goods that render punishment necessary need not include retribution--retribution can be left to the God who says: "Vengeance is mine".
This may be a part of why John Paul II says in Evangelium Vitae that for the death penalty to be justified in some particular (and presumably very rare) case it must be justified on grounds of protection of society. In other words, it is the protection of society, rather than retribution, that is to be sought.
TB:  "But refraining from pursuit of retribution may well be compatible with punishment."  I agree.  Not only can one punish while not pursuing retribution, one can justly punish while not pursuing retribution.  I reject 5 above.

Which raises the question, what is retribution?  Retribution is punishment for the sake of "evening the cosmic scale." One has been wronged n-degrees.  One is thereby to be given harsh treatment by a measure of n.  This seems to me wrong.  In wronging someone one loses one's right not to be punished.  Another is sometimes permitted to render harsh treatment up to a measure of n, but one is not required to do so.  There are overriding reasons which justify forgoing retribution: reconciliation, protection of society, etc.  See this post for several reasons for punishment.

"retribution can be left to the God who says: "Vengeance is mine"."

TB: Perhaps.  But perhaps even God punishes but not for the sake of retribution.  Perhaps we should understand "vengeance" as well as "jealousy" applied to God analogically or metaphorically.

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