AUDIO
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Archbishop Peter Jensen's Christmas Message 2011 on the centrality of Jesus to human history
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Punishment is one of those universals of human communities. There is no society without punishment, we might say; a society without some notion of punishment will have difficulty remaining as a society. But as a quick read of a modern tabloid newspaper reveals, punishment is notoriously difficult to get right. No obvious system or method of punishment is available to us to apply in every time and place. The conditions under which we punish shift continually.
Punishment is also one of those features of human existence that begs for a theological description of some kind - since much human punishing is rooted in conceptions of divine judgment and justice, and since an act of punishment (and mercy!) is at the heart of the Christian gospel.
According to evangelical theologian Oliver O'Donovan (author of Ways of Judgment), punishment is
a judgment enacted on the person, property, or liberty of the condemned party.
That's the target of punishment. But what is it? Punishment is an act which says something about a preceding act or an existing state of affairs to create a new moral context. It is an act of social definition: it discriminates and decides. It expresses and communicates.
So, what about 'retribution' or giving back'? Punishment is an expressive act that represents the original crime rather than is exchanged for it. Retributive justice (i.e. 'an eye for an eye') says that there is in punishment something of what was originally done given back to the offender. Well, this is true: but it is more accurate to say that what comes back comes back as a representation - a symbol if you like - of the former act.
It is 'an answer rather than an echo'.
In that sense O'Donovan thinks that the best way to think of the justice that we do in punishing is to think of it as attributive justice. Something new is conferred or attributed by the community in the enactment of justice by means of punishment. The punishment is not merely generated by the offence automatically, but is deliberately and with full consideration applied to the offender. Room is made for mercy, for one thing. As he says:
The punishment of an offender requires the community to devise a truthful response to the offence, which is a purposive action, not a blind consequence or an instinctive reaction.
This is certainly a good description of how the cross of Christ was both God's punishment of our sin and the grounds for his forgiveness of sins.
An example? By imprisoning a drunk driver responsible for a death for a number of years, her society attributes guilt to her and communicates its disapproval of her recklessness. Her suffering is not the same as, or even the same type as, the suffering she inflicted; but it is, as far as can be measured, a just and proportionate response to the crime she committed. And it leaves room for her repentance and restoration to the community.
Whatever the case: as the recipients of mercy, Christians oughtn't to be those who easily find themselves damning others to an earthly hell. The guilty are not beyond the pale as far as God is concerned: after all, Jesus said it is the sick that need a doctor and not the healthy.
It was evangelicals in the Church of England, lead by Charles Simeon, who raised the funds to send the chaplain Richard Johnson and his wife along with the first fleet. The punished were not abandoned to their punishment.
Siding with the punished, mind you, will not win us many friends in our self-righteous society, will it?
I've just returned from checking out a primary school for my son next year. The subject of bullying came up. The school does not believe in retributive justice, but restorative justice. They don't punish students for bad behavior, they sit down and chat about it. Any thoughts?
Without knowing more details it sounds like they are merely increasing the opportunity for injustice to me, with the weak being re-victimised by the process.
Some comments about the school question:
1. Does the school really embody Restorative practices, or is merely the equivalent of an organisational "mission statement" hanging in the company boardroom? I ask this because many public schools (primary not high) subscribe to restorative justice as their official bullying policy. Only a small percentage of those actually embody the practice to any extent.
My kids have been to two different schools, only a coupel of km's apart, where the policy was in place in both. But the practice couldn't be more different.
2. There is within some restorative justice, a strong "anti-punishment" ideal, but is not the dominant ideal, not would I argue even the leading ideal. It is more often a case of simplistic "either/or" thinking on the part of people who do not understand its vision or practice very well.
3. Some of the positives in restorative practices in schools:
a) it acknowledges the harm done to people and relationships and seeks to heal those in a supportive and relational way (cf. in my school days, if someone was caught bullying they would simply be sent to the Deputy for a canning. This often made it worse, not better for the victim).
b) Michael hints at a lot of research that shows that bullying is reduced where bullies have to face their victims - in a context that is safe and won't be re-victimised - and in front of the bullies peers / family
c) "Mending the harm" is also important
1. What happened?
2. What were you thinking of at the time?
3. What have you thought about since?
4. Who has been affected by what you have done? In what way?
5. What do you think you need to do to make things right?
The "victim" and his/her friends are asked a different set of questions:
1. What did you think when you realised what had happened?
2. What impact has this incident had on you and others?
3. What has been the hardest thing for you?
4. What do you think needs to happen to make things right?
So the "sit down and chat about it" is pretty structured and intends moving towards, apologies, different relationships (sometimes with agreed to behavioural contracts). Importantly the "victim" is given a voice in all of this.
Although what I have written sounds like big endorsement, there are some crucial theological issues that need engagement - hence my research. For a preliminary sketch of these, see my article in the upcoming edition of International Journal of Public Theology 3 (2009) 299–318.
O'Donovan's suggestion (and mine) is not for a diminishment of the retributive component of justice - not at all. It is rather a more accurate description of what punishment can and must do. And, having spoken of the retributive component of justice, Christians must always seek to speak about and pratice grace and mercy, too.
My suspicion is that we Christians are so keen to uphold retribution in the light of its denial, that we forget that a merely retributive view of justice is sub-biblical in the end.
there is a massive gap between theory and practice when it comes to judicial punishment. The idea of 'getting punishment right' seems wildly positivist to me. All human judgement (even with best intentions) is frail and contingent & won't ever deliver a result where everyone will say - justice was done. Even worse are the cases where the judicial system itself produces injustice. I know plenty of lawyers who wouldn't be looking to the judicial system for justice - that can either be cynical and dismissive, or push us to reform. For all though, it should push us to hope in the God who one day will do right when he brings about his final judgement.
I think the atonement tells us this. It also tells us that the cost of sin and evil is always borne by someone: in the case of forgiveness, the forgiver chooses to absorb the impact of the other's wrongdoing. Forgiveness is not pain free...
o Mercy reflects the truth that a criminal is still by nature a human in the image of God – thus punishment must not de-humanise the criminal.
o Mercy reflects that humans are more than mere individuals claiming certain rights but are interrelated – the criminal is still a member of society.
o Mercy communicates to society the imperfectability of human judgements in the present age.
o Mercy communicates that even judges will appear before the judgement seat of God (i.e they are not blameless).
o Mercy is an appropriate corrective to established patterns of imperfectible judgements.
An interesting quote from John Paul 2 on the topic:
"Mercy is an indispensable element for shaping mutual relationships between people, in a spirit of deepest respect for what is human, and in a spirit of mutual brotherhood. It is impossible to establish this bond between people, if they wish to regulate their mutual relationships solely according to the measure of justice […] Society can become "ever more human" only when we introduce into all the mutual relationships which form its moral aspect the moment of forgiveness, which is so much of the essence of the Gospel."
That said, an interesting model is the restriction on punishment in the Old Testament:
Deuteronomy 25:1-3 If there is a dispute between men and they come into court and the judges decide between them, acquitting the innocent and condemning the guilty, 2 then if the guilty man deserves to be beaten, the judge shall cause him to lie down and be beaten in his presence with a number of stripes in proportion to his offense. 3 Forty stripes may be given him, but not more, lest, if one should go on to beat him with more stripes than these, your brother be degraded in your sight.
Here we have the idea of 1 - proportionality, 2 - to be determined by a judge, and 3 - a merciful limit on punishment because of the possibility of degradation in the punishment.
Anyone else find this curious??
Another thought (that I am currently exploring) is the closer connection that should exists b/w justice and justification... some theological explications of justice seem far removed from the possibility of justification by faith, too much theological reasoning on justification seems unaware / uninterested in the justice aspects.
I do tend to think we have a propensity to be a bit like Jonah sometimes: secretly hoping for a great spectacle of God's wrath on the earth, and rather disappointed when the city repents and God forgives them. Where's the justice in that?
I'd love to hear you say some more about Romans, Geoff (and others): it seems there at least partly Paul is showing how God is both just and justifies the ungodly - and the answer has to be the propitiatory sacrifice of the Son. It is in this light of course that we have to read his statements in Romans 13 about vengeance etc.