Punishment & Society

Christianity organizes thinking about punishment around the value of love. Love requires a focus on the common good and on benefit to the soul or character. Punishments harmful to the soul are to be avoided, and punishments beneficial to the soul are to be favored. This has important implications for the death penalty.

I distinguish two kinds of criminal wrongs. A wrongdoer who acts in defiance of his conscience is guilty of what I call a wicked wrong. A wrongdoer who does not act in defiance of his conscience is guilty of what I call a vicious wrong. The distinction derives from a conception of immorality often associated with the Christian tradition. The distinction is important because it determines the moral message a wrongdoer should try to send through the punishment or penance he must endure in order to atone for his wrongdoing.

The thought that religious ideas could have any place in a normative theory of criminal punishment will be anathema to many liberals. I argue, however, that we can understand criminal punishment as a species of secular penance, as part of a communicative enterprise in which the polity seeks to involve its citizens. After explaining what a penance amounts to in this context, I meet the liberal objection that punishment as thus conceived would be an oppressive and illegitimate intrusion into the realm of moral character and conscience which is not the state's, or the law's, business. Finally, I raise (without offering any confident answer to) the question of whether there are any kinds of crime that are so destructive of the very possibility of political community that punishment as communicative penance is no longer morally possible, and focus in particular on the version of this question that is raised by terrorist crimes.

Prosecution of corporations, for common law offenses such as homicide as well as for specially tailored statutory offenses, is now an established part of the administration of criminal law in the United States. Conviction is explicitly guided and justified by the retributive purposes of criminal law as much as the deterrent. Evidence of corporate mens rea generally focuses on calculated indifference to value in itself - of the kind contemplated in the theory of profit maximization - and corporate culpability and remorse are operative terms in sentencing. The ontology of a responsible person here, irreducible to human individuals or to a system, may connect this area of criminal law to religious thought in a special way. This area may also be where the retributive, with its recognition of responsibility and its opening to remorse, atonement and forgiveness, is most clearly articulated and justified. Positive duties are implied and creativity looked for in analysis. These developments are more congenial to a religious sensibility than to one that is purely secular. Their broad acceptance may be made possible by the breadth of religious practice in the United States, and be evidence of contemporary influence of religious thought on legal thought, evidence indeed of basic connections between the two.

This essay offers a critical rereading of the western theological and legal doctrine of illegitimacy or bastardy. The author traces the western stigma against bastards to the Bible, particularly to the story of Ishamel, the illegitimate son of Abraham and Hagar. He then shows the systematic discrimination against bastards in classic canon law and in early modern Anglo-American common law, and the slow amelioration of their plight in legal reforms in the United States in the past century. The author concludes that the western doctrine of illegitimacy is theologically illegitimate and suggests a few historically-informed legal remedies, notably adoption, that would help mitigate the plight of illegitimates today.

In the Catholic moral tradition, what is expected of the person is that he inform and follow conscience; the person becomes morally perfected by responding to his God-given desire for the real and the good. A criminal law shaped by Catholic principles, therefore, would sanction the criminalization not only of (some) intentional wrongs but also of (some) negligent wrongs; it would understand negligence, however, as the person's failure to do his personal best to seek the real and the good. A Catholic criminal law would not purport to demand virtue; it would both call for and respect an individual's conscientious, diligent quest for the good.